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Full text of "Cobbett's complete collection of state trials and proceedings for high treason and other crimes and misdemeanors from the earliest period to the present time ... from the ninth year of the reign of King Henry, the Second, A.D. 1163, to ... [George IV, A.D. 1820]"

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^ 


COMPLETE*COL  LECTION 


State    Trials 

AND 

PROCEEDINGS    FOR    HIGH    TREASON    AND    OTHER 
CRIMES  AND  MISDEMEANORS 

noM  THS 

EARLIEST  PERIOD  TO  THE  YEAR  1783,     . 

I 

WITH   JfOTES  AXD   OTHER  ILLVSTRATlOtTS : 

COUPILSD  BT 

T.   B.   HOWELL,  Esq.  RR.S.   F.S.A. 

INCLUDIMO, 
nr  ADDITIOH  TO  THZ  WHOLK  OF   THE  If  ATTBB  COKTAIRED   IS   THE 

roiIO    EDITION  OF   BARORAVE, 

rPWAKDB    Of    TWO    HDKDBBD    CASES    NEVBB    BltFOBB    COLLECTED; 
TO   WHICH   IS  SUBJOIKIS 

A  Table  of  Parallel  Rsfsrescb, 

KIltSKRIirG  THIS  EDITIOK  APPLICABLE   TO   TBOSE  BOOKS  OT  AUTHOBITY  IK 
WHICH   BSPBHENCES   ARB   MADE  TO   THE  POLIO   1 


IN    TWENTY-ONE    VOLUMES. 

VOL.   m, 

3—16  CHARLES  1 1627—1640. 


LONDON: 

JVMuI  hy  T.  C.  Award,  Ptteticmtgh-Caitrt,  Fttel-Stna : 
JOE  LONGMAN,  HURST,  REES,  ORME,   *»d  BROWN ;  J.  M.  RICHARDSON 
BLACK,    PABBURY,    add    ALLEN;    BALDWIN,   CRADOCK,    akd    JOY 
E.  JEFFERY;   J.  HATCHARD;   R.  H.  EVANS  j    J.  BOOKER;   E.  LLOYD 
J.  ^pCrni^.BUDD  AXo  CALKIN;  AND  T.  C.  HANSARD. 
'      '  1816. 

,ji,..c:,yGoogle 


UBRARY  OF  THE 
LELAND  STANFORD  JR.  UNIVERSITY. 

'"  ■  27  ;900 


,1,1.1,  Google 


TABLE   OF   CONTENTS 


VOLUME  III.  . 


STATE  TRIALS  IN  THE  HEIGN  OF 

KING  CHALES  THE  FIRST, 

A.  D.  I6ia7— 1640. 

*,*    75e  Wiu  MaiUr  it  nmked  [N.] 


137.  Proceedings  on  the  Habus  Cobpus,  bronght  by  sir  Thomas  Damel, 

Sir  John  C(ffb«t,  Sir  Walter  Earl,  Sir  John  HereniDgbam.  and  Sir  Ed- 
mund Hampden,  a.  d.  1627:  Togetherwith  the  Proceeding!  in  Parlia- 
ment, relating  to  the  Libott  or  the  Svbjbct,  a.  d.  1628  and  1629  -        1 

138.  Caae  of  Walter  Lova,  esq.  Sheriff  o^iWilti,  and  one  of  the  Borgeues  for 

Bath,  for  absenting  himielf  from  hta  Bailiwick  to  attend  hii  Duty  in 
Parliament,  1629  [N.] 234 

139.  Proceeding!  sgaiott  Wiu-tah  Stkoud,  esq.  Walter  Long,  esq.  John 

S£LDBN,  esq.  and  Others,  on  an  Habeas  Corpus,  in  Banco  Regis,  1630      233 

ISO.    Proceedings  against  Sit  Johh  Elliot,  Deneil  Hollii,  esq.  and  Benjamin 

Valentine,  esq.  for  seditious  Speeches  in  Parliament,  1629      -        -    SO* 

in.  Proceedings  against  Soobr  Manivakinc,  D.  D.  for  preaching  and  pub> 
liahing  two  Sermons,  maintaining  Doctrines  tending  to  the  Subver- 
■i<»i  of  the  Laws  and  Liberties  of  the  Kingdom,  I62t  [N.]        -        •    SSt 

193.    The  Case  of  Hugh  Pine,  esq.  upon  an  Accusation  of  Treason,  for  Words 

8p<riMn  in  Contempt  of  the  King,  1623  [N.]    -         -         -         ■         -     359 

ISi.    Proceedings  against  Jobm  Feltom,  tor  th«  Murder  of  the  Duke  of  Bvck- 

in^am,  1628  [N.]      -        - 307 


D;j,i,:«,.,yGoogli: 


TABLE  OF  CONTENTS. 

Pagt 

134.  Froceedingt  agaiiut  Mr.  Richabo  Ciumbsss,  in  the  Sttr-ChBinber,  for 

■cditioua  ^ecbei  before  the  Privy-Cooncil,  1629  -        -        -        -    37* 

135.  Proceeding!  in  the  StaT*Cfaaraber  sgaiott  Dr.  ALEUMin  Leigbton,  for 

a  Libel,  1630      -         - ^         -         -     SS3 

.  136.  Proceedings  in  the  Stu-Chamber  agaioit  tbeSari  of  BsDroRD,  the  Eari 
of  Clare,  the  Earl  of  Sombuet,  Sir  &oi«bt  Cotton,  John  Sbldeh, 
esq.  Oliver  St.  John,  esq.  and  Othen,  for  publishing  a  seditious  and 
scandalous  Writing,  1S30      ---,-.--     5S7 

137.    The  Trial  of  Mbetdi  Lord  Ausltt,  Earl  rf  CaitlbSavsii,  for  a  Rape  ttitd 

Sodomy,  1631 402 

13d.  The  Trial  of  Lawrence  Fitz-fatbick  aod  Giles  Bkoadwat,  two  Serranta 
of  the  before- Kientioned  Lord  Audlby,  Earl  of  CastlehaTCn.  at  the 
King's-Bench,  for  a  Rape  and  Sodomy,  1631  -         -         -         -     '    -     419 

139.  The  Trial  of  Jambs  Lord  Uchiltrie,    for  Calumnies  and   dandemui 

Speeches  against  James  Marqqis  of  Haraihon,  aniL  the  Earls  of  Had- 
dington, Roxburgh,  and  Buccteugh ;  tending  to  the  sowing  of  Sedition 
'  betwixt  his  Mijesty  and  the  said  Noblemen ;  at  Edinburgh,  163 1      -    43<t 

140.  Proceedings  in  the  Court  of  Chiralry,  on  an  Appeal  of  High  Treason : 

by  Donald  Lord  Rea,  against  Mr.  David  Ramsey,  1631  -        -        -    483 

141.  Proceedings  in  the  Star- Chamber  agunst  Henky  Shebfikld,  esq.  Re- 

corder of  Salisbury,  for  breaking  a  painted  Glass-Window  in  the 
ChuTchof  St.  Edmonds  in  the  said  City,  1632  -         •         •         -     510 

Hi.  Proceedings  against  Wm.  Prynn,  esq.  in  the  Star-Chamberi  for  writing 
and  publishing  a  Book  intitled,  "  Histrio-mastix,  or  a  Scourge  for 
"  Stage-Players,"  &c.  and  also  against  Michael  Sfarkes,  for  print- 
ing, and  against  William  Buckneb,  for  licensing  the  said  Book,  1632-3     562 

143.  Proceedings  in  the  Star-Cbamber  against  Sir  Davis  Fowlis,  Sir  Thomas^ 

LaYTon,  and  Henry  Fowlis,  esq.  on  a  Charge  of  opposing  the  King's 
Serricc,  and  traducing  his  Officers  of  State,  1633      ....     J8G 

144.  The  Trial  of  JoUn  Lord  Balherino,  in  Scotland,  for  a  Libel,  1634  -     591 

-.145.     Proceedings  in  the  Star-Chamber  against  Dr.  John  BASTtncK*    Mr. 

Hbnby  Burton,  and  William  Prvhn,  esq.  for  several  libels,  16S7    -     *1 1 

146.  Proceedings  in  th<!  Star-Chamber  against  Dr.  John  Williams,  Bishop  of 
Lincoln,  for  publishing  false  News  and  Tales  to  the  Scandal  of' his 
Majesty's  Government;  for  revealing  Counsels  of  State  contrary  to 
fais  Oath  of  a  Mvy  ConoMOor ;  and  Sk  tamperiflg  with  the  King's 
Witoesses,  1637  [Ni]  -        -   ■     .        .        -'.     -        -        -    770 


;.,yGoOglc 


TABLE  OF  CONTENTS. 

Page 
147.    ProceeAi^  in  Uk  Case  vS  Sbip-Homby,  between  tke  Kixo  sud  John 

Hamfdsn,  eiq.  in  the  Ezcheqaer,  1637  --•-..     820 

The  First  Writ  for  Ship  Money -     830 

The  King'sJ^tter  to  the  Jodges         ......    g42 

The  Answer  of  ^e  Judges  .......     g^ 

The  King,  vermu  John  Hampden,  in  the  Caae  of  Ship  Money  .     846 

The  Fim  Day's  Argument  of  Mr.  St.  John,  on  behalf  of  Mr. 

Hampden,  before  all  the  Judges  in  the  Exchequer  Chamber  -  850 
The  Second  Day's  Argument  of  Mr.  St.  John  ....  gog 
The  First  Day's  Argument  of  Sir  Edward   Littleton,   knt.    his 

Majesty's  Solicitor  General,  on  behalf  of  his  Majesty  .         .     Q23 

HieSecondDay's  Argument  of  Sir  Edward  Uttleton  ...  g30 
The  Hitfd  pay's  Argument  of  Sir  Edward  Uttleton  -  -  -  952 
The  First  Day's  Argument  of  Mr.  Holbome  on  behalf  Mr.  Hampden  063 
The  Second  Day's  Argument  of  Mr.  Holbome  -  -  -  -  1)76 
The  Third  Day's  Argument  of  Mr.  Holborne  -  .  '  .  .  .  989 
The  Fourth  Day's  Argument  of  Mr.  Holb<Hiie  ....  loOO 
The  First  Day's  Argument  of  Sir  John  Banks,  knt.  his  Majesty's 

Attorney  General,  on  behalf  of  his  Majesty  ....  joii 
The  Second  Day's  Argument  of  Sir  John  Builu  ....  ioS2 
Tlie  Third  Day's  Argument  of  Sir  John  Banks  ....  io51 
.  The  Argument  of  Sir  Francis  Weston,  one  of  the  Barons  of  the 

Exchequer  .        ^       ------.        .  io6i 

Tlie  Argument  of  Sir  Edward  Crawley,  knt.  one  of  the  Justices  of 

ihe  Court  of  Common  Pleas  -  -  -.  -  -  -  .  .  I07t> 
The  Argament  of  Sir  Robert  Berkley,  one  of  the  Justice's  of  the 

Court  of  King's  Bench 1037 

The  Opinion  of  Sir  George  Vemon,  one  of  the  Justices  of  the  Court 

of  Common  Pleas  ........  ]I25 

A  few  Notes  of  the  Argument  of  Sir  Thomas  Trevor,  one  of  the 

Barons  of  the  Court  of  Exchequer  -        -        -        -        -        -  1125 

The  Argument  of  Sir  George  Crooke,  one  of  the  Justices  of  the 

Court  of  King's  Bench  -         -         -         -         -         -         --1127 

The  Argument  of  Sir  George  Crooke,  as  it  was  presented  to  the 

King U40 

The  Argument  of  Sir  William  JoaeSf  one  of  the  Justices  of  the 

Court  of  King's  Bench  -  -  •  -  -  -  -  -1181 
The  Argument  of  Sir  Richard  Hutton,  one  of  the  Justices  of  the 

Court  of  Common  Pleas '   .  1191 

Ihe  Opinion  of  Sr  John  Denham,   one  of  the   Barons  of  the 

Exchequer  ..........  1201 

Google 


TABLE  Ot  CONTENTS. 

'He  Argument  of  Sir  Humphry  DxTenport,  Lord  Chief  Baron 
of  the  Exchequer  -        -        --        ...        .        .  1202 

Tlie  Argument  of  Sir  John  Finch,  Lord  Chief  Juitice  of  the  Court 
of  Common  Pleas         -         .._-...  ijit 

The  Argument  of  Sir  John  Brampston,  Lord  Chief  Justice  of  the 
Court  of  King's  Bench 124S 

Copy  of  the  Order  as  it  was  drawn  upon  the  Motion  of  Mr.  Attor- 
ney General  -         -         -         -         -         -         •         -         -1251 

Copy  of  the  Judgment,  as  it  is  entered  upon  record       -        -        -  1252 

Proceedings  in  Parliament  thereon     ------  1254 

Impeachment  of  Sir  Robert  Berkley,  and  the  other  Judges  who 
gare  their  Opinions  in  the  Case  of  Ship  Money  ...  1293 

148.     The  Trial  of  John  Lilburn  and  John  Whakton,  for  Printing  and  Pub- 
lishing Seditious  Books.    IntheStar-Cbamber,  1637  -       -        -        -  UlS 

U9.    The  Trial  of  Thomas  Habrison,  Clerk,  at  the  King's-Bencb,  for  a  Misde- 
meanor in  speaking  reflecting  Words  of  Judge  Hutton,  1 6S8      -         -  1370 

Another  Account  of  the  above  Trial  from  Tanner's  mss.  in  the 
Bodleian  Library  [N.] 1378 

150.    The  Trial  of  Thomas  Earl  of  Stbaffoed,  Lord  Lieutenant  of  Ireland,  for 

High  Treason,  10*0 .-        -1382 


COBBETTS 


COBBETT'S 
COMPLETE    COLLECTION 

OP 

State  Trials. 


127.  Proceedings  on  the  Habeas  Corpus,  brought  by  Sir  Thomas 
Darnel,  Sir  John  Corbet,  Sir  Walter  Earl,  Sir  John  Hesening- 
ham,  and  Sir  Edmund  Hampden,  at  the  Kings-bench,  in  West- 
minster-hall ;  3  Charles  I.  A.  D.  l627 ;  'I'ogether  with  the 
Proceedings  in  Parliament^  relating  to  the  Libertt  of  thk 
Subject;  a.  d.   1638  and  1629- 


7hE  king  bifiog  deprived  himteir of  the  proi- 
pect  of  kIT  pariiameatar^  Aids,  by  disaoWing 
Ibe  parlbmenc,  and  yei  resolving  to  prosecute 
the  war;  il  was  necossaiy  to  project  all  pos- 
tiUe  w*}9  and  means  of  raising  money  ;  Co 
vhich  end  JeUers  were  sent  lo  c)ie  Lords  Lieu- 
teoanttof  the  coumiei,  Co  retuni  ibe  names  of 
the  peraons  of  ability,  and  what  sums  tbey  could 
ipare;  and  the  CocnpCroIler  of  the  king's 
Hooaebold  issued  furta  letters  \a  che  king's 
name,  uader  tbe  privy  leal,  to  lerenil  peisona 
tdunied  for  the  Loan-money;  some  were  rs- 
w»ed  90t  tome  15,  and  others  lOl.  and  Com- 
miaionecs  were  appointed  with  private  iiuCruc- 
tiDqs  bow  to  bebave  chemselves  in  this  affair. 
Mid  divers  lords  of  Che  council  were  nppoinccd 
10  repair  into  iheir  counties  to  advance  the 
Loan  *.  CollecCorg  were  also  appointed  CD  pay 
mto  the  exchequer  tlie  sums  receiveil,  anil  to 

"  "  Sir  Randolf  Crew  ibevting  no  zeal  for 
tbe  advancement  ofthe  Loan  was  then  removed 
from  fail  place  of  Lord  C bier- Justice,  snd  sir 
Nicholas  Hyde  tuccreded  in  hii  room:  a  per* 
son  who,  for  his  parts  and  abiiitjea,  was  (bought 
woithy  of  chat  preferroent;  yet  neverchejeii 
came  to  the  same  wtih  a  prejudice,  coming  in 
tbe  pUce  af  one  so  well-beloved  and  to  sud- 
denly removed."  1  Ruahwortb,  420.— CrnLc 
(Cbariei)  p.  5«.  "  Mem.  upon  Fridny  the  10th 
of  Nov.  sir  Raniioir  Crew,  Chief  Justice  of  the 
Kii^a  Bench,  was  diicliarged  of  that  place,  hy 
writ  under  the  greaf  seal,  rar  some  cause  of  dis- 
pleasure conceited  against  faim;  but  for  what, 
w«i  not  generally  Lnowa," 

TdL.  III. 


return  the  names  of  such  as  refused,  or  dis- 
covered a  disposition  to  delny  che  payment  of 
che  aums  impotcd.  This  assessiueiic  of  the 
general  Lonn  did  not  pass  currently  with  the 
people,  for  divers  persons  refused  to  subscribe 
or  lend  at  the  rate  proposed;  the  non-sub- 
icrHhen  of  high  rank  in  all  counties  were  bound 
over  by  recognitaiices  to  tender  their  appear- 
ance at  tbe  Council-board,  and  performed  [ha 
same  accordingly,  and  direra  of  themconunitted 
to  prison:  which  caused  great  murmuring. 
But  amongst  chose  many  gentlemen  who  were 
imprisoned  chrougbout  England,  for  refusing 
to  lend  upon  the  Commission  uf  Loans,  onlj 
five  of  them  brought  their  IJabeas  Corpus,  viz. 
sir  Thomas  Darnel,  sir  John  Corbet,  sir  Walter 
Earl,  air  John  Heveninehain,  and  sir  Edmund 
Htimpden. 

ARGUMENTS 
tn>ON  THE  HABEAS  CORPUS. 
Sir  TuoUAS  Di.hnel  his  caie,  Midi.  3  CaroU. 
Banco  Regis. 
Sir  Thomas  Darnel,  baronet,  being  imprison- 
ed in  the  Fleet,  by  virtue  of  a  warrant  signed 
by  the  Lintt's  Aitorney  General,  upon  il?e  3rd 
af  November,  bj  Serjeant  Brarmiion,  (lis  as- 
signed council,  milTed  ihejusticrsof  the  King's 
Bench  lo  graut  him  a  Writ  of  Habeas  Corpus 
cumcaaia  ;  directed  to  the  Warden  of  the  Fleet, 
CO  shew  that  court  the  cau-e  uf  liis  imprison- 
ment, that  theteupoti  they  nilghc  determine 
whether  his  restraint  were  legal  or  illegal;  and 
il  was  granted  hv  the  court  returnable  Xbundaj 
fbUowmg  Che  8tb  of  November. 


3]         STATE  TRIA15,  3  Charles  I.  i627.~PrMeedh^onihe  HabeaiCorpuir 


On  Thursday,  tir  Thomai  Daniel  ei^ectcd 
Chnt  t)i9  Writ  should  be  returned,  hut  it  was 
deliived  ;  and  it  was  moved  thut  ihe  relum 
should  lie  on  Sntiii'day,jihe  iOtb  uf  N«v%mb«r, 
1rhil^h  made  atr  Tbi>ma9'ihe  fnore  wniM  in 
saiiii;  out  an  Alios  u|>on  liis  Habeas  Corpai. 

On  Saturdnj  the  Writ  whs  not  returned,  and 


sir  Tbomu  DHrutl,  relurnable  upon  Thursdaj 
mornioit  the  15tli  of  Nov. ;  by  virtue  of  whicti 
Writ,  ihe  warden  of  the  Fleet  brings  birTliomoi 
Darnel  to  the  King's  Bencli,  and  relurneth  as 

follovreCli : 

Executio  iitiat  Brevifpactt  tn^ua^iup  K:keditla 
eiaf'  huic  brfof. 


Ttiei 


'EjioIIenricosLiloer 
<  douiini  regis  de  le  Fh 
'  regi  certifico  quod  die'.  ThopUB  Darnel  ba- 
'  runet'  detenlus  est  in  prisuua  prxdict'  aub 
'  custodia  paep  yirlufe  cmusdarn  .  wHrrniiti  duo- 
f  zaia  die  pnvttto  cousiliu' raibi  direct),  ciyiu 
'  Ucor  sequilgr  in  liis  verbis,  «il. 

'  Wljcrea*  he'etofore  tlie  bod;r  of  sir  Thomas 
'  Darnel  luilli  been  committed  (o  jaur  custody, 
'  (Jipse  axp  to  fMoire  you  siiU  to  cmttinue  him  ; 
'  nnd  to  let  you  Elqoit  tlj.it  lie  was  and  is  com- 
'  milted  by  the  sjiecial  command  of  bis  ma- 
'jeslj,  &c.' 
El   htc-  at  cauia  deUntionis  pradiel'  Thema 

Sen.  Braattoa.  M»y  it  please  your  lord- 
•hip,  1  did  out  expect  this  cauie  at  this  time, 
neither  did  I  hear  of  it  until  I  came.iiow  into 
the  llaJI ;  Bfid  tlieretbre  I  ihall  nav  humbly 
•hew  you  whnt  my  disnt  hath  informed  mc 
Itiice  my  cwninf  hither.  I  uiidertund  by  bioi 
that  he  expected  not  hia  couiingjo  liiii  place 
(O  day;  tlie  Writ  by  t>hidi  he  was  brought 
Igitlier  was  not  moved  for  by  him,  but  was  pro- 
cured witliout  his  privity:  and  teeing  his  case 
f«  so,  and  that  he  pcreeivet  the  cause  of  his. 
(KHning,  which  before  he  Loew  oot,  his  motion 
to  your  lordship  is,  thut  you  would  he  pleased 
to  let  him  have  tb«  cppy  of  the  return,  aitd 
uve  him  time  to  speuk  unto  it,  and  that  this 
Writ  being  not  sent  out  by  his  procurement, 
may  not  be  hied. 

Attorney  General  Heath.  My  lords,  it  is 
true  that  this  gentleman,  sir  Thomas  Ehu-nel, 
being  impoioned  in  tlie  Fleet,  did  h^retafare 
move  your  lordships  for  a  Habeas  Corpus,  &c. 
pnd  it  was  granted  bim  :  and  his  mBJ«a[y  being 
piiadc  aiujuaiuted  thrreuith,  wai  very  "^illuE 
that  he  and  all  his  people  niiflit  have  fQ^ 
justice  ;  ,  ^d  when  ihey  clfsira  that  which 
•eeuu  to  accord  with  tlie  rules  of  the  Uw,  the; 
should  have  it.  But  it  fell  out  to,  thqt  un'thp 
inf  wbeu  the  Writ  should  have  been  returued, 
tlie  Warden  of  the  Fleet  did  not  return  it,  as 
it  vias  his  duly  (o  have  done ;  he  did  fofhear 
to  do  it  upoti  a  comqiaadaieiit,  because  it  was 
.  fonceived,  Chen  being  live  at  tliat  linre  to' 
appear,  the  Court  would  hare  been  straitened 
fiir  want  of  time  :  but  I  iinagiued  that  these 


gentlemen  who  did  dceire  the  Writ  before, 
should  bare  again  been  earnest  to  renew  them, 
which  it  seems  they  did  lyit.  Thia  Habeas 
£^rpits  nat  swt  out  by. Special  command,  be- 
cttuse  (tese  gentl«aien  gave  out  in  speeches, 
and  in  pSJ'ticular  this  gentleman.  That  tiie<f  did 
wonder  why  they  should  be  hindered  fram 
Triari,  aa^  what  sbouf4  be  die  ceacofi  their ' 
Writs  were  not  retantedi  nay,  his  majesty  did 
tell  me,  that  they  reported  that  the  kioi^did 
deny  them  the  course  of  justice,  and  therefore 
he  commanded  me  to  renew  thcWrii,  which  I 
did,  and  think  I  may  do  it  ex  officio. 

Sir  Tbo.  Darnel.  My  lords,  I  knew  not 
until  now,  but  that  I  was  committed  by  Mr. 
Aiiarruy'i  Wsivanc  onljr,  and  thereupon  I  did 
desiiKH  UabHS  Corpu  at  the  bar,  which  yuu 
were  pleased  to  grant  me  ;  but  nuw  I  under- 
stand that  my  reotniint  is  by  another  meani, 
nnd  therefore  I  shnll  crave  leave  to  have  some 
lime  to  apeai  to  it.  And  as  for  the  words 
nlled);ed  against  me,  as  if  1  had  spoken  them, 
J  liumbly  pray  they  may  be  no  djsparaKemeDC 
to  my  cause,  for  1  do  patientiy  refer  myself  to 
your  grave  censures,  as  being  acciwcd  of  a  bet 
whereof  I^m  no  ways  guilty. 

Ui/de  (L.  C.  Justice.)  Yiiu  give  a  terrperata 
and  lair  answer ;  and  now  you  may  perceive 
the  uprij^t  and  sincere  proceedings  that  have 
been   in   this  business.    You   did   no   sooner 

[letitiun  to  have  counsel  assigaed  you,  but  yon  ■ 
lad  it  granted  to  yoa,  for  indeed  we  ceitnot 
dcnv  itj  and  I  tnow  not  but  that  any  counsel 
might  have  moved  for  you,  without  having 
beeii  assigned  for  you,  and  yet  have  had  no 
blame;  for  it  is  the  kmg's  pleasure  his  laws 
shiiuld  tnke  place  and  be  executed,  and  ibere- 
fure  do  we  sit  here.  When  you  m(ide  a,  motion 
for  a  IlabeoiiCorpuii,  that  was  likewise  granted; 
Bliethcr  tlie  commitment  be  bv  the  king  or 
otiiers,  this  Court  is  a  place  where  the  king 
doth  sit  in  person,  and  we  have  power  to  eia- 
mine  it;  and  if  it  appears, that  any  man  halh 
iiljury  or  wrong  by  nil  imprisonment,  »b  have 
pciwcr  to  deliver  end  dlsctiaiTe  him  ;  if  other- 
wise, he  is  to  be  remandetf  by  us  to  prison 
Bfiain.  Wow  it  seems  jou  are  not  ready  to 
speak  to  this  return;  irjou  desire  a  further 
day,  we  ouuht  to  gnint  it. 

&r  T.  liernel.  Mylor^",  Ibumhly  desire  it. 
L.  C-  J-     1  know  no  cause  why  it  should  b« 

Sen.  BramloB.  My  lords,  we  shall  deui« 
the  Wi'it  may  not  be  Sled,  and  tliat  we  ma^ 
bare  a  copy  of  the  return. 

All.  Cea.  ¥ou  cnnnot  deny  t)ie  filing  of  the 
Writ,  if  ypu  deiire  io  havt  a  Bopy  of  the  returq. 

Ji.  C.  j.  Although  you  be  remgnded  at  this 
time  [o  prison,  because  you  are  not  ready  10 
spe^k  to  tlie  return,  »e  c^n  B4Jour|i  ypu  to  a 
new  d»y  upon  the  Writ,  and  so  you  inajr  pt*. 
Mn?  yourself;  but  if  you  will  not  have  tlifs 
Died,  iheiti  must  go  out  a  new  Ilubeas  Corpus, 
and  tliereupoo  niusi  be  another  return. 

Scij.  Bramtioa.  My  lord,  we  denre  some 
time,  that  we  may  be  advised  nhetbei  we  niBl 
proceed  or  AOt, 


i]   STATE  TBIA13.  3  Chablbs  I.  ISai.-^ougla  Ig  Sr  T.  Dm-itel,  mdoihert;     [9 
L  C.  J.    Wib  joa  MilMKk  ^unatf  to  ihe 

^r  r.  Banul.  My  lord,  [  desiro  some  time 
In  adiise  of  mj  procemliiip :  [  ha'e  moved 
Moj  awa,  ud  ofered  to  retain  lliein  of  my 
cmukI  ;  but  they  refute  me,  nDd  I  can  get 
use  to  be  of  cowiaeL  with  me  without  yoiir 


■  what  couutel  os- 
lire ;  fur  do  offence 

an  that  shall  advi^ 


LC.J.  You  shall  hai 
iptijoa  will  hitce  or  dt 
mil  Im  nken  against  any  b 
fMiByour  proceedings  in  law. 

All,  Gen.  I  will  pass  my  word,  they  that 
dfi  idvise  you,  sboU  beve  no  offence  taken 
■piiM  tbeta  for  it ;  and  I  shall  give  coasont 
U  id;  way  that  you  shall  desire,  eittwr  tliut  it 
n>jbe£lrd,  ortliat  it  may  not  befiledi  fur  if 
TN  liesire  justice,  you  shaU  hava  it,  and  ibe 
tii;  nilJ  not  deny  it;  but  if  it  shall  be  con- 
ixmd,  as  it  is  rumoured,  that  there  was  a  de- 
Dial  si  justice  on  the  king's  part,  yiiu  must 
bum  that  his  majesty  is  very  tender  of  that. 
Aid  lot  the  gentleman,  now  be  is  brought 
hiber,  i  conceive,  but  yet  I  leave  it  to  your 
lurdtliip'i  judgment,  that  the  writ  tnust  be  filed, 
isd  joa  must  cither  deliver  him,  or  pcinand 
iim,  or  else  it  will  be  an  escape  ia  llie  waixjea 
of  tile  Fleet. 

Sir  T.  DarMl.  I  would  not  have  it  tfaouf^ht 
dmlsboiild  speak  any  thing  BgaioM  my  prince, 
■wl  Ibr  llioie  trords  I  do  deny  them ;  fur  upon 
Bj  cwuctence  tliey  never  came  into  my 
lliiiuglit:  perhaps  you  shall  liud  that  they  have 
tecD  spoken   by  some  other,  but  not  by  imy 

LC.J.  Sir,  you  have  made  a  fair  answer, 
■ad  I  doubt  not  but  Mr.  Aiteraey  will  make 
tbelita  relation  of  it.;  you  mova  for  the  not 
fliijof  the  Writ;  if  yuu  refuse  to  have  it 
ft^wbarebyit  should  not  be  of  record,  you 
naa  hare  do  copy  of  it ;.  Iiut  if  you  will  have 
il  filed  jou  shall  have  b  copy  of  it,  and  furtiier 
lime  to  speak  to  it;  chuse  whether  of  them 


Strj,  Branutoa.  We  desira  to  have  tbe 
ntnni  read  once  more. 

And  it  was  read  as  before. 

Strj.  Bramtton.     So  at  the  writ  may  no 
fltd,  we  will  desire  no  «^y  of  the  return. 

L.  C.  J.  Than  the  gentlemsa  must  return 
Ucka^iu  into  the  casto<^  of  the  Warden  of 
ibe  Fleet  j  and  therefore  I  aak  you,  whether 
yM  desire  to  come  hither  ^gaio  uptm  tliis  Writ,. 
N  will  jou  have  a  new  oi^e  I 

Sir  T.  Darnel.  I  desire  your  lordship  that 
Inay  have  time  to  coosiderof  it. 

il  C.  J.  Then  in  God's  name  take.  your, 
tea  tine  to  (bink  of  it. 

Mich.  3  Car.  Regis,  No*.  3S„163r. 

Sit  John  CoHHt,  bert.  sir  Wattet  Earl, 
*ta  Heveninghani,  sir  EAnnott  Hampden, 
Wghtl,  were  brought  to  the  bar. 

&7.  BraBmtan.  tHaj  it  pletteyour  lorddiip 
■tbear  the  return  rntd,  or  slialll  ofKDitr 

LCJ.    Utitbvread, 


Keelitig. reeds  the  return,  being  tlic  same 
as  that  ol'  sir  'P.  Darnel. 

Strj.  Sraiatbrn.     May  it  please  your  lord- 
ship, I  shall  bumhW  move  upiMk  this  ratunt  in 
the  behalf  of  tir  John  HeveniNglinin,withwbi}m 
I  am  of  counsel ;  it  is  his  petitiun,  that  he  may 
be  bailed  from  bis  impritoniiient :  it  was  but  in 
n   kir  me  to  move  that  to  a  court  at'  law, 
icbby  law  cannot  be  granted  :  and  there- 
:  in  lh»  regard,  that  upon  this  return  it  will 
be  questioned,  whether  us  tl lis  return  is  made, 
the  gentleomit  may  be  bailed  or  not?  1  shall 
hutobly  offer  up  to  your  lordship  the  case,  and- 
e  reasons  out  of  mine  understand  me.  arisiiig 
of  the  return  itself,  to  satisfy  yoor  lordship 
that  these  prisanera  may',,  and,  as  tlieir  case  it, 
lusbt  to  be  bailed  by  your  lordship. 

The  exi:eption  that  I  take  Oi  this  return,  is  a* 
veil  to  the  matter  and  substance  of  tlia 
etuni,asto  the  lutmnErodd  Segal  form  [bercDf:  . 
he  exception  that  1  take  [o  the  motter,  is  iit 
several  reelects. 

That  the  return  is  too  general,  there  is  no 
eufficient  cause  shewn  in  special  or  in  gm^ral 
of  the  commitment  of  this  geatletnan-;  and  as 
it  is  iiisutticient  for  the  cause,  so  also  in  the 
time  of  the  first  imprisonment :  for  howsoever 
here  doib  appear  a  time  upon  the  second  war- 
"  from  the  lords  of  the  council  to  detnio  hinj 
in  prison,!  yet  by  the  return  no  time  can 
appear  when  he  was  first  imprisoned^  tboogh  it 
be  neceUBiy  it  should  be  shewn;  and  if  that' 
time  appear  not,  there  is  no  cause  your  lordship- 
Ebould  remand'  him ;  and  comequenily  he  is  to 
bedelivered^ 

Touching  the  matter  of  the  letunit  whioli  is . 
the  cause  of  bisilnprisonnieoi,  it  isexpreMed 
to  be'  per fpeciale  mnndDlUnf  domini'  regis:' 
this  ia  too  geDeml  and  uncertain,  for  that  it  it 
not  manifest  what  kind  of  command  this  was. 

Touching  the  lepel  fbrm  of  the  return,  it  is. 
not,'  as  it  ought  ti>  lie,  fully  and'posiiiveiy  thv 
return  of  tiie  keeper  himse'lf  only,  but;  it  comes- 
with  a  lignificamt,  or  praat,  tlint  he  was  com- 
mitted ■  per  speciale  niandaium  domini  leilit,' 
as  appenreth  by  warrant  from  the  lords  of  tba 
council,  not  of  the  king'  himself ;  and  that  lit 
not  gnod  in  legal  form. 

FoT.therantierandaulistance  of- the  return, 
good,  because  there  ought   to  be  • 


llhat  the  sulject  haih  in  this  and  such-like  case 
to  obtain  his  liberty ;  tliere  are  other  Writs  by' 
which  teen  are  delivered  from  lestraint,  as 
that  De  Homine  Re^iUgiando,  but  extends  not' 
to  thia  cause,  for  it  is  porticolarlv  excepted  in'  ■ 
ibebody  of  ibe  Writ  De  Manucnptione,  et  ds- 
.Caulione  Adniittenda,  but  they-  lie  ia  other 
cases:  but  the  Writ  uf  Habeas  Corpus  is  the- 
only  means  the  subject  hntb  to  obtain  liil. 
liberty,  and  the  end  uf  this  Writ  is  to  return 
the  cause- of  the  inrprisonment,  that  it  msy  ba- 
eiamined  in  this  court,  whether  the  pertiM' 
oajht  10  bedischatged  ornot !  but  tbetoannoti 
ibedmie  upon  this  return:  for  the  cause  of  the' 
limpriMQment  of  this  gentleaaa  at  bst.is  to  lar' 


STATE  TRIAIS,  3  Ciiakl»  L  imT .—Proceedagi  on  the  Habea*  Corput,         [§ 


from  appcariDB  jiarticularlT  bj  it,  that  there  is 
no  cBiue  at  afi  eipress*U  in  K. — Thi*  Writ  re- 
qalres  that  the  cnuM  of  the  imprisonment 
■boulil  be  returned,'  and  if  the  cnoie  be  not  tpc- 
cially  ceriified  by  it,  jet  should  it  at  the  least 
be  shewn  in  general,  that  it  may  nppear  to  the 
judges  oi' the  court;  audit  must  be  expressed 
so  tar,  ai  (hat  it  ma^  appear  tu  be  none  ot 
those  causea  furnhich  bf  Isw  of  the  Linzdam 
the  subject  mght  not  lo  tie  imprisoned ;  and  ii 
ought  to  be  expressed  that  it  was  by  prtient' 
taent  or  indictmeut,  and  nut  upon  petition  or 
BUgeestion  made  to  the  king  and  lords,  vhich  is 
agamst  the  statute  made  in  the  85  S..  S,  c.  4. 
43  E.  3,  c.  3. 

By  the  statute  35  E.  S,  c.  4.  it  is  Ordained 
and  established,  '  That  no  man  from  hencelarib 
shall  be  taken  b;  petition  or  suggestion  made 
to  the  kill);  or  hi»  council,  bat  by  indictment  or 
course  ot  law;'  and  acconjinglyit  nas  enacted, 
4S  E.  a,  c.  S.  the  title  of  which  statute  is, 
'  None  ahull  be  pui  to  answer  an  accBsaiion 
made  to  the  king  wjibiut  present  meat.'  Then, 
tny  lord,  it  being  so,  althouEh  (he  caiue  should 
.  not  need  to  be  eipresied  in  such  manner  as 
that  it  mai  spMar  to  be  non«  of  these  causes 
mentioueti  Iti  tne  statute,  or  else  the  subject  by 
this  return  toseth  the  benefit  and  aclvaniaEe  of 
these  laws,  which  be  their  birih-right  and  inhe- 
ritance; but  in  this  return  there  is  nn  cause  nt 
all  appearing  of  the  first  commitment,  and 
tfaerefore  it  ii  plain,  that  there  is  no  cause  for 
yoar  loriiship  to  remand  him ;  but  there  is  cause 

JM  should  deliver  him,  since   the  writ  ii  to 
ring  ifae  body  and  the  cause  ofthi 
ineut  before  your  lordship. 

-But  it  maybe  objected,  that  this  _._  _. 
H^.be  IS  Corpui  dotfa  not  demand  the  cause  of 
the  dm  coaimitment,  but  of  the  detaining  onlj; 
and  so  tlic  »rit  is  latiafied  by  the  return  ;  ior 
thiiogh  it  shew  no  ciiuse  of  tiM  first  fMmniic- 
meiii,  hut  of  delaining  only,  vet  it  declareth 
a  cause  why  the  gentleman  is  detained  in  pri- 
son 1  this  is  no  answer,  nor  can  give  any  salis- 
Actiun ;  for  the  reason  why  the  cause  is  to  be 
returned,  is  for  (he  subject's  liberty,  that  if  it 
shall  a)ipeara  good  and  sufficient  cause  to  yattr 


lord- 


lordship,   then  to  be  reraanded  ;  if  your  la 
■hip  think  and  find  it  iasufficient,  be  is  .to 

This  ii  the  end  of  this  writ,  and  this  . 
^ipear  to  yuur  lordship,  unless  the  time  of  the 
finl  cooiDiitment  be  expressed  in  the  return.  ' 
know  thai  in  some  cases  the  time  is  nut  mat 
rial,  as  when  the  cause  of  the  co^nmitmcnt 
(and  that  so  especially)  relumed,  as  that  the 
tine  is  not  material,  it  it  enough  to  shew  the 
cause  wilhnut  the  time,  as  after  a  conviction  or 
trial  had  by  law  ;  but  when  it  is  in  this  manner, 
tliHt  tbe  time  is  the  matii'r  itself:  for  intend 
what  cauw  you  will  of  tbe  commitment,  yea 
tbouich  for  tbe  bigliest  cause  uf  treason,  there 
it  no  doubt  but  that  upon  tbe  return  thereof 
tbe  tine  of  it  must  appear ;  for  it  being  before 
trial  anil  conviction  had  by  law,  it  is  but  ao 
■ccusatioit,  and  be  that  u  only  accuKd  might 
I7  law  to  be  iM  la  baiL 


Hot  I  beseech  jonr  lordship  to  abs^rve  the 
consequence  of  this  cause.~  If  tbe  law  be,  that 
upon  this  return  this  gentleman  should  be  re- 
manded, I  will  not  ditpute  whetheror  no,  a 
man  may  be  imprisoned  before  he  be  convicted 
according  to  tlie  law ;  but  if  this  return  shall 
be  good,  then  his  imprisonroent  shall  not  con- 
tinue on  fbra  time,  but  for  ever;  and  the  sub- 
jects of  this  kingdom  may  be  restrained  of  (heir 
liberties  perpetually,  and  by  law  there  can  be 
no  remedy  lor  ibe  subject  :  and  therefore  this 
retnrn  cannot  stand  with  tbe  lawsof  (he  realm, 
or  that  of  Magna  Charta  ;  nor  with  the  statute 
of  88  E.  3,  c.  3.  for  if  a  man  be  not  bailable 
upon  this  return,  tber  cannot  have  tbe  benefit 
of  these  two  laws,  nhich  arc  the  inheritance  of 
the  subject. — If  your  lordship  shall  think  this 
to  be  a  sufficient  cause,  thea  it  gueth  to  a  pei^ 
peiual  imprisonment  of  the  subject:  Ibr  in  all 
those  CBuies  "  hich  mWy  concern  the  king's  sub- 
jects, and  are  applicable  to  all  times  and  cases, 
oe  are  not  to  reflect  ujinn  tbe  present  time  and 

Eiremment,  where  justice  and  mercy  flonett), 
lit  we  are  to  look  what  may  betide  us  in  the 
time  to  come,  hereafter. 

It  must  be  agreed  00  all  sides,  that  the  time 
of  the  first  frommitment  doth  not  appear  in 
this  return  ;  but  by  a  latter  warrant  from  the 
lords  of  the  council,  there  is  a  time  Indeed  ex* 
pressed  Ibr  the  continuing  of  him  in  prison, 
and  that  appears;  but  if  this  shall  be  a  good 
cause  to  rentand  these  gentlemen  to  prison,  they 
may  lis  there  tliese  seven  yean  longer,  and  se- 
ven years  after  theoi,/iay,  all  the  days  of  their 
livas.  And  if  they  sue  out  a  writ  of  Habeas 
Corpus,  it  is  but  making  a  new  warrsiit,  and 
they  shall  be  remanded,  and  shall  never  have 
the  advantage  of  tbe  laws  which  are  the  best  . 
inhtritance of  everv  subject. — And  in  E.  6,  fol. 
S6,  the  laws  are  called  die  great  ioberitance  of 
Fiery  Bul^ect,  ahil  tbe  inheritance  of  inherily 
ances,  without  which  inheritance  we  have  no 
inheritance.  These  are  the  eiceptionj  1  desire 
to  offer  up  to  your  lurdsiiip  touching  the  He- 
turn,  for  the  insufhcicncy  of^llie  cause  returned, 
and  the  defect  of  the  time  af  the  first  commit- 
ment, wliich  should  have  been  expressed. 

I  will  not  labour  in  objections  till  they  be 
made  against  me,  in  regard  the  Statute  of 
Westminster  primo  is  so  frequent  in  every 
man's  mouth,  that  at  the  common  law  those 
men  that  were  commitled  in  four  cases  were 
not  replevisable ;  viz.  thiise  that  were  taken  for 
the  death  of  a  man,  or  the  commandment  of 
the  king,  or  his  justices  Ibr  the  forest.  I 
shall  speak  something  to  it,  thongh  J  intend 
not  to  spend  much  lime  about  it,  fur  it  toucb- 
etb  not  this  case  we  have  in  qurttion. 

For  that  is  concerning  a  case  of  the  common 
law,  when  m«i  are  taken  by  the  king's  writs, 
and  not  by  word  of  mouth,  and  it  shall  be  so 
expounded,  as  Mr.  Stamford,  fill.  73,  yet  it  is 
nothing  to  [his  case,  for  if  fou  will  take  ihe  trna 
meaning  of  that  statute,  it,  extendi  not  at  all 
to  this  writ  of  Habeas  Corpus ;  for  the  words 
are  plain  ■  they  shall  be  replsviiable  by  the 
wht/  thai  is,  by  tlM  writ  ■  De  bo- 


9}  STATE  TRIALS,  S  Chajile*  I.  1627.— ftrongAl  ty  Srr  T.  Darnel,  and  others.  [lO 
'  niiw  teple^Undo,'  directed  to  the  sheriff  to 
dtlncr  liwrn,  if  they  were  bniUble  :  but  tbit 
CMC  i>  mtiove  the  ibertff,  and  he  it  not  to  b* 
judgt  is  it,  whetlier  lb*  cidsu  of  ibe  cummit- 
BWDt  be  Midicirat  or  not,  m  it  appears  in  Fili- 
Berben,  •  De  bomine  rrple^iando,'  and  msiiT 
other  {dare*,  and  not  of  tbe  Terr  words  of  llie 
Matcte  tbis  is  clear,  for  there  be  many  otbpr 
caoMs  nmilioned,  as  the  death  of  a  niao,  the 
eommudmentoftbejusuce.&c.  in  whicb  tbe 
statute:  smith,  men  are  not  replevisable.  But 
will  a  man  conceive  that  the  meaning  is,  that 
ibey  shall  nut  be  bailed  at  all,  hnt  liie  in  per- 
jwllml  im^riionmeut  t  I  think  I  (hall  not  netd 
to  aptiul  time,  in  thai  it  is  so  plain ;  let  me  but 
make  one  inatancc. 
'  A  man  is  taken  de  aorU  hominu ;  he  is  not 
bailable  bj  writ,  sailh  this  Stotnle ;  that  ij,  by 
die  conmon  writ :'  there  was  a  cotnmon  wnt 
ttv  this  caw,  aral  that  was  called  de  odh  tl  atia, 
aia{ipearetb,  Bracton,  Coron,  34,  This  is  the 
writ  intended  by  tbe  staiote,  which  is  a  com- 
mon writ,  and  not  a  special  writ ;  bnt,  my 
lewd,  at  this  writ  de  odio  el  acta  was  before  this 
Kaloce,  so  it  was  aAerwards  taken  away  by  the 
sunite  of  38  E.  3,  c.  9.  Bat  before  that  tta- 
tott,  this  writ  did  lie  in  tbe  ipecial  case,  as  is 
•hewn  in  Coke's  9th  Repott,  the  podterer*! 
Case ;  and  tbe  end  of  ibis  writ  was,  that  tbe 
lalgtct  might  not  be  too  long  detained  in  pri- 
■m,  as  till  tbe  JDMices  of  Eyre  discharged  them. 
So  that  the  law  intended  not  that  a  maa  ahould 
■iSer  perpMnid  imprisonment,  for  they  were 
Hry  cuefi)!  that  men  should  not  be  kept  too  long 
in  prison,  which  is  also  a  liberty  of  the  subject ; 
and,  my  lord,  that  this  contt  huh  bailed  upon 
a  mspidon  of  High-Treaioo,  I  wiU  offer  it  to 
jom  lordship,  when  I  shall  shew  jiau  precedents 
10  these  cases  of  a  commitment  by  llie  privy- 
etwoeil,  or  bj  the  king  himself:  but  before  I 
nfe  these  precedents  unto  your  lordship,  of 
which  there  be  many,  I  shall  by  your  lordship's  ■ 
isTPSripeak  a  little  to  tbe  next  eicepCion,  and 
that  is  to  the  natter  of  the  return  which  I  find 
*  be  '  per  qieiuale  mandauim  domini  r^s.' 
Aad  what  ia  that?  It  appears  by  this  writ, 
there  may  be  suadry  commands  by  tbe  king; 
we  £nd  a  apecial  command  often  in  our  books, 
■  ia  tbe  BtatDta  of  Marl.  cap.  8.  ibey  who  were 
aapriioned  Kedbs,' shall  not  be  delivered  wilh- 
on  the  qjecial  eomntand  of  oar  loid  the  king, 
Aad  sa  in  Br«cton,  deAttiomlmi,  the  last  chap- 
ter, where  it  appears  that  the  ki^s  commaod- 
Bent  fior  imprisonineDta  is  by  special  wni ;  so 
by  writ  again  men  are  to  be  iMirered,  for  in 
lb«  case  of  Kedia'  or  Piit  Rediti,  ir  it  shall  be 
I  by  a  Certiorari,  that  is  by  a  special 


?r  parties.   So  that  by ^^ , 

that  by  the  Mng's  commandment  to  imprison, 
sad  to  ddirer  in  those  cases,  is  understood  this 
writ,  and  so  it  may  be  in  this  case  which  we 
hare  beard. 

And  this  return  here  is  a  special  Mandatum; 
it  any  be  noderstood  to  be  nnder  some  of  tbe 
kill's  seala,  49  Ass.  and  ought  to  be  ddirered  ; 
«a<r  will  joo  make  a  diSeience  betureen  tbe 
kini's  command  imder-liii  fnO,  and  bia  com- 


mand by  word  of  mouth?  What  diSetvoce 
tlwie  is,  I  leave  it  to  your  I ordabip'n  judgment  i 
bnt  if  there  be  any,  it  is  the  mure  mairnal  that 
it  bhould  be  expressed  what  manner  of  com- 
mand it  was,  whit^h  duth  not  hf  re  appear  ;  and 
tberefure  it  may  be  the  kiug's  cummand  by 
writ,  or  his  command  under  bis  seal,  or  his 
commnnd  by  word  uf  mouih  alone. 

And  if  there  is  any  of-tbeic  commands  of  an 
higher  nature  than  tbe  other,  doubtless,  it  is 
itet  by  writ,  or  under  seal,  Tor  they  are  of  re- 
cord, aud  in  these  the  perwin  may  be  bailed, 
and  why  not  in  thisP  As  to  tlie  legal  form, 
admiiiing  there  were  substances  in  tbe  re- 
turn, yet  there  wants  legal  fonn  ;  for  the 
writ  of  Habeas  Corpus  is  the  commnndmeiit  of 
the  king  to  the  keeper  of  the  prisons,  and 
thereupon  they  are  to  make  return  biitb  ul'  tbe 
body,  and  of  the  cause  of  the  cummiinient,  and 
tbut  cause  is  to  appear  of  them  wl|0  are  tbe 
immediate  i^cers.  And  if  he  doth  it  hy  signi- 
fication Irom  another,  that  return  is  defective 
in  law,  and  therefore  this  return  cannot  be 
good,  for  it  must  be  from  the  officer  himself; 
and  if  tbe  cause  returned  by  him  be  good,  it 
binds  the  prisoners, 

The  warrant  of  the  lords  was  but  a  direction 
for  him ;  'he  might  have  made  his.  return  to 
have  been  expressly  hy  the  king's  command- 
nMnt,  there  was  warrant  for  it,  1  shnll  not  need 
to  put  you  cases  of  it ;  for  it  is  not  enough  that 
he  returns  that  lie  was  certified  that  the  com- 
mitment was'by  tbe  king's  command,  but  be 
must  of  himself  return  this  fact  as  it  was  done. 
And  naw,mylord,  I  shall  offer  to  your  lord- 
ship precedents  of  divers  kinds,  upon  cummit- 
ments  by  the  special  command  of  the  king,  and 
upon  commitmeots  fakitb  by  tbe  king  and  the 
lords  together.  And  howsoever  I  conceive, 
which  I  submit  to  your  lordship,  that  our  caae 
wilt  tiDt  stand  upon  precedemi,  but  upon  the 
fund  a  mental  taws  and  statutes  of  this  realm; 
and  though  the  precedents  look  the  one  way  or 
the  other,  they  are  to  be  brought  back  uuto 
the  laws  by  which  the  kingdum  is  governed. 
In  tbe  1st  of  Hen,  B,  Rot.  Pari.  9,  one  Har- 
rison was  commiired  to  the  Marslialsea  by  the 
command  of  the  king;  and  b^iig  reolnved  by 
H.  Corpus  into  the  court,  the  cause  returned 
was,  that  he  was  committed  '  per  mandatum 
'  domioi  refis,'  and  be  was  bailed. 

In  the  40  Eliz.  Thomas  Wenden  was  com- 
mitted to  the  gatehouse  by  the  commandment 
of  tbe  queen,  and  the  lords  of  tbe  catmcit :  and 
being  removed  by  an  H.  Corpus,  upon  the  ge- 
nptol  return  he  was  baited.— In  8  Jac.,  one 
Csiar  was  committed  by  the  king's  command- 
ment^ and  ihis  being  returned  upoo  bis  H,  Cor- 
pus, upon  the  eiammation  of  this  case  it  doth 
riear  thnt  it  was  over-ruled,  that  the  return 
uld  he  amended,  or  el*«  the  prisoner  should 
be  delivered. 

The  precedents  concemiiu  the  commitomit 
by  the  Lords  of  the  Council,  are  in  effiect  the 
same  with  these  where  the  commitment  is,  by 
the  reason  why  the  causa  of  the  coouaitment 
should.not  be  shewn,  holds  in  both  caaes,  and 


11}      CTATETRIALS,  SCkaklesI.  1927.— Pr«aediigi<mtke HabeiuCorpn,      [IS 

tbU  i»tlM  ntceuily  of  Miit;  aai  ib«reibre  Mr. 
Staiofotd  makes  iht  cataxtmad  of  th«  king,  himI 
thu  orth«k>r<l*oribefrit;r^c«4HiEil,  to  babocL 
Bi  on<  ;  aa4  tolhis  purpoaa,  if  Ihejr  speak,  ha 
Bpeaki;  and  if  he  apeikf,  tbey  ipaalk 

The  precedents  tbut  we  can  sLew  jou,  bow 
tbe  subject  haib  lieen  delivertd  upoD  commit- 
ment  by  tbe  lords  of  [hecoaDcil.ao  i»tbe  tkMi 
of  Hen.  8y  and  in  the  tinei  of  i^eii  Eiix,,  aid 
queen  Mnry^are  infitute ;  a»  in  ibe  Bth  'EKi. 
Thomas  LawreBce  WIS  coBuniUe4  to  the  Tewcr 
bT  the  lords  of  ihe  council,  and  baibd  upon  aa 
H.  Corpus. 

In  the  43  Eliz.,  Calvia's  cMe.  In  the  9d 
Eln.,  Vemon'f  cue.  These  wera  committad 
for  Hig>  TreasoD,  and  yet  bailed  ;  for  in  kU 
these  cases  there  must  tie  a  coovictioa  in  due 
tjose,  er  «  dellverauce  hy  Un, 

There  be  divers  other  preeed«nts  that  inkbt 
be  shewn  la  your  lordship.  In  13  Jac.,  bfilei 
Benards.  In  13  Jac.,  liot.  155,  Rd.  Beckwitb's 
nose.  In  4  Jac,  air  Thocnae  Moason  waa  oaia- 
skied  for  treason  to  the  Tower  of  Loodoa.and 
afterwards  was  broi^ht  hither,  and  bailed ;  and 
tine*  aur  case  staoda  upon  ibis  return,  and  yet 
there  is  no  sufficient  cause  in  law  Mfiteeeed  in 
the  return  oftfaeiietsitiing  tliisgemleiBani  and 
since  titesa  precedents  do  tnurant  our  pro- 
js ;  iity  hiunble  suk  to  this  court  is,  tliat 

>  gentleniiui,  sir  Johti  Heveniagbam,  who 
hath  petitioned  his  inajesly,  tliat  lie  loayhave 
the  benefit  of  the  Inw,  and  his  majesty  hath 
signilicd  it:  it  is  bis  pleasure  thtit  justice  ac- 
cordiag  l«  th«  law  shoitld  be  administered  at 
all  times  in  general  to  nil  his  subjects:  and 
partieulariy  tu  these  eeutlemen,  which  is  tbeir 
Wth-right :  ny  huinhle<saiL  to  your  lordship  is 
that  these  gentlemeii  may  have  the  benelit  of 
that  law,  and  bo  delitered  from  their  impriaon- 


Mr,  Noye's  Argutnent   of  Counsel  with    sir 
WiOur  Eiirl  at  that  time. 

May  it  please  your  lordship,  I  am  of  coun- 
sel with  sir  Walter  Eurt,  one  of  the  prisoners 
at  the  bar :  the  return  of  this  writ  is  as  those 
(liat  have  been  before,  they  arc  much  of  one 
tenour,  and  a%  you  have  henri  tbe  tenour  of 
that,  so  this  gentleman  coming  hither  by  an 
II.  Curpus^I  will  by  your  lordship's  &Tour  read 
the  writ: 

■  Carotaa,  Dei  gratia,  &c.  Johanni  IJloe 
'miiit'  Guiirdian'  prison'  nostra  de  le  Fleet 
'  salut*,  Frzcipimui  tibi  ijuod  corpus  Wslteri 
'  &irl  miLt'  in  prison'  nostra  anb  custodia  tua 
'  deCoiC'  ut  dicit'  una  cum  i-ansa  detentionii  sua 
*  <  qaocunqiie  nomiaa  pradict'  Walter*  censeai 
'  in  eadtm  HabeaV  Corpus,  ad  Hibjiciendum  let 

•  recipiendum  ea  quEs  curia  nostra  de  eo  adunc 
'  etibideB  ordiu'  conting'  in  bac  parte  et  hoic 
'  DuUatenns  omit'  periculo  incumbend*  et  ha- 

*  b«BS  ibi  hoc  brere.    Test'  Hyde',  apod  West- 

<  minsMr,  qiiartodie  Nor.,  anns  8.'  '  Eiecu- 
'  tio  istius  Brevia  patet  in  ^hm 

<  bac  bran  luutciM.! 


'E^o  JohBoaesLiloe  Mir  Guardian' Prison' 
'  domini  Kegisde  le  Fleet,  serenissiioo  dotaino 
'  ragi,  Bpud  Westminster  8.  Fust  receptioneni 
'  bnltn  brevis  cfiod  in  hac  scliedula  est  weif- 
'  tiooat',  Cartifico  quod  Walter  £uil  railes,  in 
'  eoden  breviuin  nominat'  deteutus  est  in  pri- 
'  loaa  de  le  Fleet  sub  custodia  mca  pradicli* 
'  per  spceiale  mandaiuiu  ilomini  regii  luiLi  s^ 
'  uificaiun  per  WarrniitutD  dnorum  etaliunim 
'  de  Privato  Coiicilio  perbonorabili«Biiai  dicti 
'  domiii  reps)  cujus  quideai  tenor  seyntur  in 
'  bac  verba,' 

Whereas  sir  Walter  Earl,  knight,  was  here- 
tofore committed  to  yi>ur  cottody,  iheae  are  to 
will  and  require  you  still  to  deiaiu  hia,  letting 
you  know,  that  l>utb  his  first  couuniUixnt,  ana 
this  direction  for  the  continuance  of  him  in  jtri' 
son,  were  and  are  by  bis  majesty'i  special  cum- 
mandznent.  From  Whitelnll,  7  Noveuibrii, 
ie9T.ThoniasCoveniTy,C.S.,nenry  Mancbec 
ter,  Thomas  SuSolk,  Br]d^»  ater,  Krily,  R.  Du- 
nelin',  I'homas  Edinunria,  John  Coo)i,  Marlbo- 
rough, Pembroke,  Salisbury,  Totness,  Gmndi- 
son,  Guliel' Bath  and  Wells,  Uoheri  Nanlon, 
Richard  Weston,  Humphry  Mayes. 

To  the  Guardian  of  tbe  Fleet  or  bis  Depoly. 
'  Et  hssc  est  causa  deteutioais  predict'  WbI~ 
'  lari  Earl  sub  custodia  mea  in  priseu  pnedtct'. 
'  Attamen  corpus  ejusdem  Wiilteri  ciirata  do- 
'  mino  rage  ad  dieai  ct  iooum  pvodiclum,  post 
'  Feceptionem  brevis  pnwticlT  parat'  luibeo 
'  prouC  iHud  breve  in  be  en^et  et  vequitet.'' 


My  LoTi^  the  first  Habeas  Corpus  bears  dM« 
the  4ih  of  Nov.,  tlien  there  is  an  Alias  HabeM- 
bears  Testa  after  (hat,  and  the  wsour  th««of 
is  a  cvniinBBd  ta  the  warden  of  the  Fleet, 
'  quod  HabeasCorpus  Waiteri  Eed,coram  nubi^ 
'  od  subjicieodura  et  recipiendtun  en  qua!  curia, 
'  nostra  de  eo,  &c,  ordin'  floatinj^.'  Aiid  iha 
Wanlen  of  the  Fleet,  be  oertt6es  as  your  lord- 
^ip  haa  heard.  May  it  please  your  lopdship, 
I  desire  as  belbrevws  detuvd  fopthe  other  geu- 
tlewen,thatstrWBlterEarLmayheaiK)  batled, 
if  ihera  be  no  other  cause  of  bi»  itnptisonnlent : 
for  if  there  tvera  acause  certified, aud  that  g>«m 
irere  not  tufficieui  to  detain  him  Mill  in  pnsoa, 
yuur  lordship  would  buil  him  ;  and  if  a  mai» 
should  be  in  a  worse  case,  when  there  is  no 
cause  certified  at  all,  tliat  wotild  be  very  liard. 

Tbe  writ  is,  that  he  sliould  bring  the  prisoocp 
coram  nobk,  belbre  liie  kin^,  the  end  ol'  thait  ia 
'  ad  subjicieadum  et  recipieailuni  ;'  now  1  con^ 
cetve,  that  thou^l  [here  lie  aiignifieation  oTtlw 
king's  pleasure  to  have  this  g^ntjeiuan  impri- 
soned, yet  Hheo  the  king  grantj  this  »rit  to 
brioB  me  prisoner  hither, '  ad  sutjiaieadum  et 
■  redpieaduai,'  his  pleaaune  lihewisa  is,  to  hav« 
the  prisoner  let  go,  if  bj  law  he  be  not  cliaif*- 
able ;  or  otherwise  t«  ileiaiB  him  Hill  in  piiiM^ 
if  iIh  IMS  w>  le^Htre  it, 

Goo;;lc 


13]  STATB  TWMUS,  8  Cukkm  J.  l«<7v-r^n)i«b  IgiSirT.  Hantt,  ad  eOen.   [14 

ttMK  h«  ii 


I  win  pot  jour  luntiliip  in  miiMl  oT  «  me, 
watd  it  ou  P«ich.  9  Ed«.  3,  M.  3.  I  will  eke 
li)'  d«  Plucita,  bcciuM  mj  book  w  net  paced 
K  ottwr  boots  are ;  it  ii  in  the  mm  «f  ■  Cm- 
Mzi(.  In  that  r>ke  there  were  two  thins  coa- 
lidrrdile :  tli«  one  that  tliere  was  a  5i|;iiiicMioD 
of  the  kiii)c'i  pleasure  past,  and  that  detennintd 
with  h'm :  ilie  other,  that  though  (here  win  n 
significiiuon  of  the  king'*  pleasure  before,  yet 
there  ruinr*  after  that  a  writ ;  and  tlial  was 
another  ujcDificaMnn  of  the  kmg'«  pleBsiuv,  <hat 
■he  prisoner  shaU  be  brought  liitber  nil  tuHifi- 
mdtm,  to  lubtnit  himself  to  puiiv<hni«nt,  i<  be 
h>ic  deserred  it ;  m  md  recipiendttm,  to  rer 
reive  fait  enlac^rlDant,  find  be  dditered,  if  there 
be  DO  came  iil  bis  iiii prison tntnt. 

Aad  if  upoD  ail  Habeas  Corpus,  a  cause  of 
CnmmitiRent  be  cenified,  that  cuate  is  to  be 
Bied  bere  befare  jonr  lurdihip.  But  if  no 
caute  be  iliewn,  tben  the  proceedinfs  musl  be 
'  ut  mria  nostra  ad  raat'  concieerit,*  the  court 
do  that  nhichsianils  with  law  and  justice, 


a  dt1.v< 


tij  lord,  I  shall  be  bold  to  nove  one  wotd 
more  (ourhing  ibtt  Herimi:  I  conceive  that 
every  officer  to  a  court  of  juslice  nuM  make 
his  rFtnm  of  hii  own  act,  or  <if  (he  act  of  ano- 
ther, nnd  not  wtei  he  is  certified  i>f  br  another. 
But  ill  this  t»se  (tie  warden  of  t(K  Fleet  doth 
Dot  certify  himself,  of  himjelf,  th*t  this  gentle- 
ta»a  was  commanded  to  him  by  the  king,  but 
chat  be  was  cenitied  by  the  lords  of  the  coud- 
dl,  that  it  wfts  the  king's  pleasure  that  be  should 
detain  bidi-  But  in  our  rase  the  warden  of  the 
Fleet  mmt  cettiFf  the  immedinte-  cause,  aod 
Dot  the  cause  of  tb*  cause,  as  he  doth  by  this 
Rlom  ;  ■  DetendiB  est  sub  custodla  mea  per 
'  ipeciale  maiidatnm  Domini  Vi.efJ9  mifai  signi- 
'  tcalom  per  Wamntum  duonim  de  Prttato 
'  Concilio  ;'  that  ii  not  the  use  in  law,  but  be 
UD^l  lo  return  the  primary  catis*,  and  not  the 
nbH^usnt  csDse:  as  in  33  £dw.  S.  return, 
Bex  iicecom'  ST.  ie  •  writ  De  Hotnine  Keple- 
pando,  against  an  abbot,  dip  sberiff  return*, 
rtm  be  hnih  sent  to  the  bailitF  of  ihe  abbot, 
and  be  itiiswered  him,  that  the  party  ytp  tlie 
abbot's  villain,  and  so  be  cinnot  driver  him  ; 
that  it  ii  held  an  insufficient  return,  and  a  new 
Aliatnas  grwied.  But  if  the  sl^iiff  had  r*- 
tnnied,  that  the  abbot  did  cerlii}  him  to,  it  hod 
been  pMMj ;  but  he  must  not  return  whqt  is 
certified  tiiin  by  another. 

In  one  of  (be  precedent!  that  hath  been 
noted,  as  that  of  Parker,  33  H.  B,  there  the 
gaanfiaji  i>f  the  prison  certifies,  that  Parlcer 
'  dtteotos  est  tab  cuatoriia  mea  ptr  mandatum 
'  Domini  Regis  mihi  iiunciatum  per  Hnbertum 
'  Pecke  ■'  now  our  case  is  by  the  nunciation  of 
many,  but  in  faiw  '  Majui  et  minus  non  Tariant 
'  m  epecicin,'  the  certification  of  one  and  of 
many  is  of  the  same  eSeri,  alihnugh  in  moral 
soderstanding  there  may  be  a  diRerence. 

Trin.  9  E.  3,  Hot.  40.  in  this  court  in  31  E. 
'3,  in  the  printed  Book  tliere  is  a  piece  of  it : 
ibe  abbot  of  Bury  beings  a  prohibiiioa  out  of 
das  court,  the  bishop  nf  Norwich  pleaded  in 
■tvoftliM,*  QiMKl'iqjbitatificatumquod  con. 


CBiad  ;  there  were  two  i 


id  they  ai 


why  he  wa*  eicomoioiiicaled ;  there  nay  be 
c««58i  why  he  should  be  eicimmunicatcd,  and 
then  be  riionld  be  barred,  and  there  may  be 
caiue*  why  tlie  eicummuiiicBtion  sbotild  not 
bar  fatal :  for  it  may  be  the  excumoiunication 
was  for  bringing  tlie  action,  which  wis  lbs 
king's  writ;  and  ther«f(»«  because  then  was 
no  cause  of  the  eicommuuication  returned,  it 
was  ruled  that  it  was  not  good.  I'ha  other 
reason  is  that  upon  the  Roll,  which  is  mHu  tu- 
tifi^aiutn. 

Now  every  man,  when  he  will  make  a  cer(i< 
ficate  to  tbc  court,  '  Proprium  factum  toum 
'  non  alterius  significare  debet,'  ha  mast  infom 
the  court  of  tka  immediate  act  done,  and  not 
that  such  tbiags  are  told  him,  or  that  Micb 
thikp  arf  signihtd  unto  hiat ;  bnl  that  was  not 
done  in  this  ca*e,  and  therefore  it  was  held 
inenCcieat,  tuid  so  ia  this  case  of  our*  I  cod* 
ceire  the  retom  ii  ioMifficient  in  the  forai. 
There  is  another  cenie,  my  lord,  for  which  I 
conoeive  ibis  return  is  not  cood. 

But  first  I'will  be  bold  to  infbnri'yoar  lord- 
thin,  touching  At  statute  of  AfagnaCharta  Sff. 
'  Nullus  liber  bomoeapiatur  vel  iiapritonetur, 
'  &c.  nee  super  eum  mittimus  ni^i  per  legate 
'  judicium  pariam  suorum,  vel  per  legem  teme.' 
That  in  Ihii  statute  theie  words  in  esrcerera 
ai<e  omitted  out  of  ibe  printed  books :  for  it 
sboald  he  'nee  eura  in  carcerem  mittimus.' 
Foe  these  words '  per  leeem  terre ;'  what '  I)et 
'  teme'  should  be,  1  will  not  lake  upon  me  to 
expaund,  otherwise  than  1  find  them  to  be  ex* 
pounded  by  acts  of  parliaroeut;  and  this  is, 
that  they  are  utMlerstoud  .lo  be  the  proceu  of 
the  taw,  sometimes  by  writ,  sotnetimes  bj 
attachmant  nf  the  person  :  but  whether, 
'  speeiale  mandatam  Domini  Regis'  be  intend- 
ed by  that  or  no,  I  leave  it  to  your  lordship^a 
expcsiiion  upon  two  Pctitiona  ot  the  commons, 
and  AiHwer  el  the  king,  in  34  £.  3,  No.  0,  aod 
No.  SO. 

In  the  first  of  them  the  coromovs  complain 
that  the  Great  Charter,  theChartar  of  the  Forest, 
and  other  italutes  were  brokeu,  and  ibey  de- 
sire tbat  far  the  lood  af  faimeelfand  of  bis  peo- 
ple, they  might  be  kept  and  put  in  execution, 
and  tbat  tbey  niightnoCbeinrringed  by  tuaking 
im  arrest  by  special  eomisand,  or  otherwise : 
and  the  answer  was,  that  the  assent  of  the 
lords  established  and  ordained,  that  the  said 
charter  apd  ether  statute*  sfiauld  be  put  in  aie- 
ct)tTO(i  atxordlng  to  the  pcriiion,  and  that  is 
without  any  'disturbance  by  arrest  by  special 
comraand  or  Mbern  ise  ;  for  it  was  granled,  as 
it  was  petkiened. 

In  the  same  year,  for  they  were  very  careM 
of,tbis  matter  and  it  wa*  necenary  it  shoold  be 
so,  for  it  was  then  an  usual  thing  to  take  men 
by  writs '  quibusdom  de  causis,'  aad  many  af 
these  words  .      .       .-  . 

ibewD ;  and  I  My  ia  the  it 


15]     STATE  TRIAI£,  S  Charlbs  I.  1637. 

jifaified  that  men  wm  impnsoaed  bj  special 
Goiamaiid,  and  wiltiout  indictmeDt  er  otber 
lef!,iil  course  uf  luw,  nnd  tbnr  desired  that  ibiop; 
tauyant  be  doue  uprin  men  by  S|jecial  conummd 
■gBiiiM  tbe  Great  Charter. 

The  kinji  mnkci  uiswet,  that  he  is  well 
pleiued  [herewih :  ttiat  wan  [he  6nt  Bii^wer ; 
and  for  the  Tuture  be  liach  adiled  farther,  if  anj 
inaiibeK>')e>ed,let  him  coinpIaii>,and  right  shall 
be  doaeuuui  liim.  Tiiis,  <iiv  lord,  isanexplana- 
tiaii  oTtiie  Great  Chnrrer,  ss  also  the  statuir  of 
ST  Ed.  3,  c.  18  ia  a  comrueniaij  upon  it,  that 
mcD  would  001  be  committed  upon  suggestion 
made  to  the  king,  without  due  pro  'fs  of  biw 
agHin  them,  and  »u  it  is  enacted  twice  in  one 


-fTMeediagim  the  Babeat  Corpm,     [18 


year. 

We  6iid  more  printed 'book*,  at  in  Hen.  6, 
Hnu  de  fiacts,  titz.  18S.  ubirh  i«  a  strong 
Ciise,  under  favour,  in  an  action  of  tr-^ass  for 
cuitiDK   dnwii  '  tree*.      Tbe   defi.ndaii[  tait^, 


tee,  and  that  the  king  did  cuniinaiid  him  ti>  cut 
them-:  and  rlie  opiuiim  of  the  court  whs,  that 
this  was  no  c<iod  plea,  without  shewing  tlie 
spc^^ltjr  of  the  command;  aud  tbey  said,  if 
tiie  kio^  commnnd  me  to  aiTest  a  nun,  wtd  I 
arrest  him,  hi:  ajiHll  have  an  action  of  fatie  im- 
priaonnieni  against  me,  altliuugb  it  were  doite 
in  the  king's  presence. 

In  1  Jul),  cap.  7,  fut.  46,  it  is  in  prbt,  and 
there  »e  leave  it. 

Hinscj,  Chief  Justice  saitb,  that  air  John 
Harkliam  told  king  Edw.  4,  that  he  could  not 
arrest  a  man  upon  EUipicion  of  frlony  or  tfca- 
•on,  ag  any  of  his  subjeciB  might;  btcause  if 
he  should  wrong  a  mau  by  such  arrest,  the 
parlies  could  have  no  remedy  acainst  bim,  if 
any  man  shall  stand  upon  it.  Here  is  a  signi- 
fication uf  the  king's  pleasure,  not  to  have  <he 
cauM  of  tbe  cuauaitment  examined;  he  hath 
here  another  signification  of  his  pleasure  hj 
writ,  whereby  the  party  is  brought  hither  '  ad 
*  subjiciendum  et  recipiendum,'  that  iie  haifa 
made  ^our  lordship  ju<^e  of  that,'  which  should 
be  objected  aguinst  this  gemleman,  and  either 
to  punish  him,  or  U>  deliver  bim  ;  and  if  there 
be  oo  cause  shewn,  it  is  to  be  intended  that 
the  party  is  to  be  delivered,  and  that  it  is  the 
king^a  pleasure  it:  should  be  so  i  and  the  writ  a 
a  sufficient  warrant  lor  tbe  <doinz  cif  it,  there 
being  no  cause  shewn  of  the  imprisonment. 
And  now,  my  lord,  1  will  speak  a  word  to  the 
writ  of  de  komme  repUgundo,  and  no  other 
writ,  for  that  was  the  common  writ;  and  the 
four  causes  expressed  in  that  statute,  to  wit, 
the  death  of  a  man,  the  command  of  the  king, 
or  his  jusiice,  or  forest,  were  excepted  in  that 
writ  before  that  statute  mode,  at  appears 
Bracton  133,  so  that  tbe  writ  wai  at  tbe  com- 
mon-law before  that  statute. 

And  it  tppears  by  our  Books,  that  if  a  man 
be  hrouEht  hither  by  an  Uabeaa  Corpus,  though 
he  were  imprisoned  de  mortt  ionUnit,  as  io  the 
31  £dw.  4,  r.  WiackGeld  was  bailed  hare,  this 
court  bailed  faim,  for  be  was  brought  hither 
'  ad  subjici«iiduiii  et  recipieiiduiD/  uid  not  to 


lie  in  prison  God  knows  how  lung;  and  if  the 
statute  should  be  eipouniled  otl.eritise,  there 
were  no  bailing  men  outlawed,  or  bitakets  of 
prison,  fur  they  are  nut  within  this  iiiaiute,  and 
yei  this  court  doth  it  at  pltasnrc. 

But  plainly  by  tbe  statute  iiaelf,  it  appears, 
that  it  meant  only  tfau  comuion  writ;  lur  tbe 
preamble  recites,  tlint  the  thirifft  uud  otheta 
had  taiien  and  kt'pt  in  prison  peisoos  detected 
of  ti'lony,  and  Irt  uut  to  plevin  such  as  nece 
not  repruable,  to  gr>eve  Uie  one  pavty,  and  to 
the  gain  of  tlie  other  ;  and  tnrasmuch  as  before 
this  liiiie  it  was  oot  determined  ithat  prisoners 
were  reprisable,  nnd  what  not,  but  only  in  oer- 
tain  cases  were  expressed,  tfaetetore  it  is  o^ 
doined,  S:c. 

Now  this  is  DO  more  than  for  direction  to  the 
keepers  of  the  prisou»,'tbr  it  leaves  the  msLter 
tu  tbe  discretion  of  tlie  juditet,  whether  bail- 
able or  not ;  tor  viliea  the  statute  hath  declared 
«lio  are  rCplei'iuUe,  who  are  nor,  as  iiieo  out- 
lawed, thuse  who  have  abjured  the  realm, 
breakers  of  prison,  burners  <if  hnuses,  makers 
01  false  money,  couDterleiting 'if  tlie  king's  seal, 
Biidtbehke;  it  is  tbeo  ordained,  that  if  the 
ibeiilf,  or  any  oiber,  let  any  pi  at.  large  by 
suritj,  that  is  not  teprisable,  wht'ther  he  be 
tlieritt,  constable,  or  any  other  that  hutb  the 
keeping  of  prisooi,  and  iliere»rbe  attainted,  he 
shall  lone  his  olbo;  aiid  fee  for  ecer ;  ao  iliat  it 
extends  to  the  common  gaulers  end  keepers  of 

Erisons,  to  direct  them  in  ftbal  cases  they  shall 
It  men  to  bail,  and  in  what  ca&ea  nut;  and 
that  they  shall  not  be  Judges  whom  to  let  to 
replevin,  and  wiiom  to  keep  in  prison ;  but  it 
extends  not  to  the  judges,  lor  if  the  makers  of 
the  statute  had  meant  tliem  in  it,  liiey  should 
have  put  a  pain  or  penalty  upon  tliem  also. 

So  then  I  conclude,  under  jour  lordJiip's  fa- 
vour, that  as  thiN  case  is,  there  shouhl  have 
been  a  cause  of  the  commitment  eijiressed,  for 
these  gentlemen  are  lirooithl  liilber  by  writ  erf 
JKyicienduM,  if  ihey  be  charged;  and  adreci- 
funium,  if  they  be  not  charged  ;  and  tlierefore 
in  regard  there  is  no  chin^e  against  then), 
whereupon  they  should  be  deiained  in  prison 
any  lunger,  we  desire  that  they  may  be  bailed 
or  di  charged  by  your  lordship. 
Mr.  Seldem'i  Aigument  at  the  King's-bencb 
bar  the  same  day. 
My  Lords ;  I  am  of  counsel  with  sir  Edm. 
Hampden  ;  his  case  is  the  same  with  the  ottier 
two  gentlemen  ;  I  cannot  hope  tu  say  much, 
after  that  tliat  hatli  been  said ;  yet  if  it  shall 
please  your  lordship,  1  shall  remember  yuu  of 
so  much  as  is  b«fallen  my  lot.  Sir  Edmund 
Hampden  ii  t  rought  hither  by  a  writ  of  Dabeaa 
Corpus,  and  the  keeper'of  the  Gntfhou^c  hath 
returned  upon  the  writ,  that  sir  Edm.  Ilanip- 
den  is  detained  in  prison  ■pertpeci^ie  num- 
'  datum  domini  regis,  mibi  significatum  per 
'  warniDium  duorum  privnii  concilii  dictl  do- 
*  mini  regis.'  And  then  he  recites  the  war- 
rant of  the  lords  of  the  council,  which  is,  that 
they  do  will  and  require  him  to  detain  this  gen- 
tt«iuii  »uU  io  pitoR,  letling  ioa  koow  Utu 


17]  STATE  TRIALS,  3  CuiiW  L  lS(a.—inughi  bsSirT.  Damel,  and  othat.  [IS 

mentioned  and  fullt  «xpmsed  :  je\  I  will  idd 
btUe  to  thmt  whidi  hath  heta  taid. 
llie  statute  of  Mogna  Charta,  cap.  89,  that 


Ui  Ent  impriaoDinent,  Ace.  May  it  platie 
jMT  lonhb^,  I  ilwll  haioblj  tnoie  jou  that 
(hn  gcnlhniBn  ma;  also  be  bailed ;  for  undrr 
hmat,  mj  lord,  tban  ia  no  cauw  id  the  return, 
^j  he  tbould  be  an;  (hnh«r  iniptiMii«d  and 
-rMtniaed  oF  bi*  libcrttf. 

Mj  Imd,  I  thall  taj  lomething  to  the  form 
■af  Ihi  nit ;  and  of  ine  return ;  but  lerj  little 
tDifaon  both,  became  there  is  a  Tcrj  little  left 
Atm  to  ttf. 

Uj  laid,  to  ibe  fium,  I  laj  it  eipreweth  no- 
AJBI  of  the  fiist  capnoo,  and  therefore  it  is  io- 
iJiciml ;  I  will  add  one  reason,  as  hath  been 
wU:  tbe  Habeas  Corpna  hath  onl;  these 
«enfa,  'qnod  habeas  corpus  cji»  nna  cum 
'cnm  detentioois,  -et  nea  capiionis.'  Buc, 
aij  loni,  bccaoie  in  all  itnprigonments,  (here  ia 
■  cnn  of  cBpUoD  aod  detentiod,  the  caption 
ii  to  be  azawend  aa-well  u  the  detention.  I 
hne  Nen  mar^  writs  of  thii  nature,  aod  on 
tbnn  the  caption  ig  retorned,  that  tbejr  might 
Mt  ihe  ttne  of  the  captioD,  end  ihereb*  know 
vbetber  the  partj  ihoald  be  deliverM  or  no, 
nd  that  ID  rrgard  of  tbe  length  of . bit  impri- 

TU  next  exeeptian  I  Uke  to  tbe  form  ii, 
4kt  there  i*  macD  nnceitainty  in  it,  to  (bat  no 
«an  can  icU  when  the  writ  came  to  the  keeper 
«f  the  fmoa,  whether  bqfon   the  retsm  or 

tr ;  for  it  appears  not  when  the  king's  com' 


a  for  the 


the  signifi' 


1^  or  the  «i) 
I  him.    It  is 


blfj'"eiewi'i 
be,  everj  man  would  i 
ibao  he  doth.    The  law  taith  expreMl 


would  enjo^  his  libert*  I 

The  law  taith  expressly, 

freeman  shalLbe  imprisoned  without  dui 


tMAappeare 

Ttliof  NaTember;   bat  nliKi  it  came  to  the 

keeper  of  tbe  prison,  that  amsean 

Md  tbereibre,  ai  for  want  ot  mentkining  the 

Mas  tine  of  the  caption,  so  fer-not  exprnsing 

^faeome  time  when  this  warrant  came,  I  think 

dierrtam  is  bult;  ia  (brm,  and  void. 

Aad  for  apparent  contradiction  alio,  loe  re. 
nn  ii  ioaufficiait ;  for  in  that  paA  of  the  re- 
tara  which  is  before  the  warmnt,  it  is  mid, 
'  Qood  deteotiia  est  per  ipeciele  mnndatum  do- 
'  aiai  regii.'  The  warrani  of  the  lords  of  the 
CMndl,  the  ver*  srllabtei  of  that  wamnt  are, 
■hat  the  lords  nf  ttie  council  do  will  and  re- 
^niektm  Kid  to  detain  him,  which  is  contrary 
B  the  first  part  of  the  r«nrn. — Besides,  my 
lord,  the  lord)  themsriTes  say,  in  annihrr  place 
aadfBBase  of  the  n&rniat,  that  the  king  eom- 
sMded  ihem  to  commit  him,  and  so  it  is  their 
.  <otDaitment;  so  that  upon  the  whole  matter, 
tksR  appear*  to  be  a  clwcontnuliction  ia  the 
istnn ;  and  diere  being  a  pontradictiou  in  the 
retam,  it  is  void. 

N«w,  my  lord,  I  will  speak  a  word  or  two  to 
tW  EMttcr  of  the  return ;  and  that  is  tooehiiig 


:  aiai  admitting 
of  any,  ot  eitb«r,  or  both  of  thete  to  be  the  re- 
tea;  I  think  that  Iff  ihe  constant  and  Bfttled 
In*  of  tbit  kingdom,  withotit  which  we  have 
•otkiBg,  ao  man  can  be  Justly  imprisoned  by 
nbtr  at  ibeil],  without  a  cause  of  the  commit- 
MK  npreenid  in  tlie  return.  My  lord,  in 
huh  tbe  last  argtuoenta  tlM  ttatirtas  W*  bevn 


of  the  law;'  outoftherer;  hodj  of  thi» 
act  of  parliament,  besides  the  explanation  of 
other  statute^  it  appears,  '  Nullus  liber  homo 
'  capiaturvelimpruonaturniiiper  te$;em  terr«.' 
My  lord,  I  know  these  words  '  le^m  tprrE,* 
do  leave  the  question  where  it  was,  if  tbe  inter- 
pretation of  the  statute  were  not.  But  I  think 
under  your  lordship's  lavonr,  there  it  must  be 
intended  by  due  course  of  law,  to  be  either  bj 
presentment  or  by  iodiciment. 

My  lords,  if  tlie  meaning  of  these  worja, 
'  per  letem  terrc,'  were  but,  as  we  use  to  say, 
according  to  the  laws,  which  leares  the  matter 
TCry  uncertain  ;  and  '  per  spedale  mandatum,' 
&c.  be  within  riiemeaiiingof  these  words, 'ac- 
cording to  the  law ;'  then  this  act  had  done  no- 
thing, Tbe  act  is,  '  Ko  freeman  shall  be  im- 
'  prhoned  but  by  the  law  of  the  land.'  If  joa 
will  nndentand  these  words,'  per  legem  terra,* 
in  the  first  sense,  thii  statate  shall  extend  to  , 
riltains  as  well  as  to  freeinen ;  for  if  I  imprison 
another  man's  rillaJn,  the  rillain  may  have  an 
action  «f  false  imprisonment.  But  the  Idtdl 
and  the  king,  foi  then  they  both  had  villalna, 
might  imprison  them  ;  and  ihe  villain  could 
have  no  remedy.  But  these  words  in  the  sta- 
tute, '  par  legem  tern,'  were  to  the  freeman, 
which  ought  not  to  be  imprisoned,  but  by  du* 
process  of  law :  atid  unless  the  intrrprelation 
shall  he  this,  tbe  freeman  ahnll  hnre  no  privi-, 
'lege  above  the  villain. 

So  that  I  conceive,  my  lords,  these  words, 
per  .legem  terra:,'  must  be  here  so  interpreted, 
s  in  48  F.lii.  The  bill  is  worth  observing.  It 
reciteth  that  divers  persons  without  any  writ 
or  pnwtntment  were  cast  into  prison,  &c.  that 
ight  be  enacted,  that  it  should  not  be  so 
>  liereafler.  The  answer  there  ii,  that  as 
is  an  article  of  the  Great  Chatter,  this 
should  be  granted.  So  that  It  seems  the  tie- 
tnte  is  not  taken  to  be  an  explanation  of  that 
of  Magnn  Charta,  but  the  i-ery  words  of  the 
atstute  of  NTagna  Charta. 

I  will  conclude  with  a  little  observation  upon 
these  words,  '  nee  loper  eum  mittimus ;'  which 
words  of  themselres  iignify  not  so  much,  a  man 
cannot  find  any  fit  sen?e  tor  them.  But,  my 
lord,  in  the  Ttli  king  John,  there  was  a  Great 
Charter,  by  which  this  statute  in  the  9th  H.  S, 
whereby  we  are  now  regulnted,  was  framed, 
and  there  the  words  are, '  nee  earn  in  carcerem 
'  niittimas.'  We  n-ill  not  commit  him  to  pri- 
son  1  that  b,  tbe  kiug  himself  will  not ;  and  to 
justify  this,  there  is  a  story  of  that  time  ia 
Matthew  Paris,  and  in  that  Book  tl^s  Charter 
of  king  John  is  set  down  at  large,  which  book 
is  very  authentic,  and  tliere  it  it  entered  :  and 
in  the  9th  of  Hen.  3,  be  saith,  that  the  itatute 
Wat  renewed  in  tlie  tame  words  with  the  Char- 
ter of  kii^  JobB.    And,  mj  hnf,  be  mi^ 


19]      STATE  TRIALS,  3  Chables  I.  1697.— Proandiiigt  on  the  Habeat  Corfia,      [M 
be  doth 


know  it  beiti?r  than  otiiers,  for  he  was  rhe  Ii 

Chronologej  in  thoje  times :  ami  therefore,  raj 
lord,  lince  there  be  io  mniiy  reasona,  and  sc 
inaijj  precedent*,  and  so  man;  5tDtutG«,  ithtcl 
declare,  that  qo  freernaii  whatsoever  ought  ic 
be  imprisoned  but  according  (»  the  laws  of  tht 
land ;  and  that  the  Lihertj  of  the  Suhject  is 
the  liighest  iuhcciiiuice  Chat  he  faaih ;  my  hum- 
>ilc  re<|ue£t  i<,  thai  KCcordint;  to  ihe  ancient 
luMS  and  privileges  of  this  realni,  this  geiitle- 
niiin,  tny  client,  m«y  be  bailed. 

The  AiiciTMENT  of  Mr.  Caltueop,  at  the 
KiDgVBentb  bar,  33  Nov.  Midi,  3  Ci 
regis. 
Sift  John  Ciirbet  being  brought  to  the 
King's-Bench  bar,  with  tir  Edmund  Hampden, 
■ir  Waher  Earl,  and  sir  John  Heveninghatn, 
nho  were  tilsu  brought  thitlier  by  serenil  wiiis 
of  H.iheai  Corpus,  witli  the  saine  return  ;  I 
being  astigneA  by  the  court  of  King's-Bench, 
upon  a  petition  dehvercd,  tobeuf  cnnnsel  uith 
tir  John  Corbet,  did  move  that  sir  John  Corbet 
might  be  discharpi'd  of  his  Imprisonment,  aad 
put  in  bail;  fur  1  did  concejie  that  tho  return 
of  this  11.  Corpus  wat  iusitlhcienc,  botii  in  the 
mailer  of  Ihe  return,  nnd  in  (he  manner  of  the 
return,  and  su  thvrenngbc  Dot  to  he  a  longer 
detaining  of  sir  John  Corttct  in  prisun.  For  as 
to  tliu  manner  of  the  return,  it  is  not  laid  down 
precisely,  iliiit  sir  John  Corbet  is  detained  in 

Eriiion  by  ttic  speciid  comnmnduieiic  uf  the 
iug,  signified  by  ihe  warrant  of  tlie  lords  of 
the  council ;  tlie  which  is  not  a  direct  aSirma- 
tioD  that  lie  is  detained  by  the  special  rommand 
of  the  king,  but  that  the  lords  of  the  council, 
by  their  warrant,  have  signified  unto  him  that 
he  was  commiilcd  and  still  detained  by  the 
special  oommand  of  tb*  king. 

And  liomsoever  ihc  lords  of  the  council  had 
signified  that  he  was  detained  by  the  commatidi- 
ment  of  the  king,  yet  it  may  be  be  was  not  de- 
tained by  the  coniuiandment  of  the  king  ;  for 
iheir  si|{nilicati'un  of  the  same  by  warrant  may 
be  untrue,  and  ilie  warrant  of  tlie  lords  of  the 
council  that  is  returned  in  Am:  iiirhi,  impnrteth 
that  the  keeper  of  the  Gatehouse  rather  tonk 
upon  him  to  return,  tliat  it  was  tignilled  unto 
hiiu  b^  the  warrant  of  the  lords  of  the  council, 
that  sir  John  Corbet  was  commilted  and  de- 
tained by  the  tpecial  commandment  of  tlie 
king;  because  il  the  keeper  had  taken  upon 
bin)  to  affirm  it  upon  his  return,  then  needed 
lie  not  Co  have  returned  the  warrant  of  the 
lord*  nf  the  council :  and  the  warmnt  itself 
sheweth  that  he  had  only  his  information  from 
the  lords  uf  tlie  council.  For  ihvir  warrant  is 
to  let  the  keeper  know,  that  both  the  first  com- 
mitmeiit,  nnathis  direction  tor  the  cnutlnuiag 
of  him  in  priwo,  were  and  are  by  his  majesty's 
soecial  commandment ;  and  1  do  not  see,  as 
this  return  is  made,  that  an  accord  upon  the 
case  can  lie  upon  (he  ketper  of  the  Gntehouse, 
if  sir  John  tiirbei  was  iir)t  commilted  nor  de- 
tained by  the  special  commandment  of  the 
king,  so  lonK  as  the  warrant  ol*  tli«  lords  of  the 
coiuicil  be  letorned  as  it  was  made,  because 


as  the  lignilicavic  of 
the  Idrda  by  their  warrant.  Register  65,  the 
writ  of  Excommunicai'  Capiend'  gnetli,  '  Rex 
'  vicecom'  Linculn'  S.  signihcavit  nob'  vener«- 
'  bihs  pater  Henticus  Liiicoliiiensis  epiB(»po$ 
'  per  titfra*  suas  pnienies  quod  R.  bdus  par(T- 
'  chial'  propter  luam  manifestam  contuuuic' 
'  autboricaie  ip-iius  episc'  ordin'excom'  eit,  nee 
'  se  vult  per  censuram  ecclenaiticsm  justiiHar' 
'  &c.  tibi pracipimus  quod  pnedict'  R.percor- 
*  pus  suum  secundum  consoetud'  AngliK  jus- 
'  tic'  &c.'  And  yec  no'.man  will  sav  that  there- 
is  an  inforniaiioQ  nf  the  king,'thaC  R.  iseicom- 


nicnted.  And  iu  Fill.  Nat.  Br.  663,  and  Re- 
gister 65,  it  appears  that  the  ibrm  of  the  writ 
of  Eicolnmunicaliim  deiiberand'  is,  '  ReiTice- 
'  com'  Lonthtn  saiut'.  Cum  Tbom'  Jay  allu- 
'  tar'  London'  qui  nuper  nd  denuniiat.  vener*- 
'  bil'  patris  archiep'  Eborum  pro  contumaciii 
'  sois  ratione  contractus  in  civitaCe  nostra  Ebo- 
'  rum  liabic'  ut  dicitbjit.  tanqnam  eiccim'  ec 
'  claves  ecclesiK  con  teamen  I'  per  corp'  sunin 
'  secundum  cunstictud'  Angliai  per  te  justic' 
'  pnecepimus,  donee  &c.  esset  satishct'  eid' 
'  archiepitcap.  ad  sniiifaciendum  Deo  eltanctK 
'  eccleane,  audi  cien  tern  expuault  cantionem, 
'  per  quod  eidem  arc  liiepi  scop  ui  offic.  archi- 
'  disc,  London,  luutuie  vicissitudin'  obtantu 
'  tcripsit  ut  ipsum  nhsolvat  ab  eicom'  senten' 
'  nieniorata  sicuC  idem  arrliicfiiscopus  per  lite- 
'  ms  suHS  pHtemes  nob'  significavit,  libi  pneci- 
■  pimus  quod  prsd'  Thorn,  cura  tibi  constars 
'  poierit  ipsum  abeicoin'  prsdicC'  per  predict' 
'  official'  absolvi  a  prison'  qua  detinetur  ai  es 
'  occasione  ct  non  alia  detineet'  in  eadem  sine 
'  dilalione  ddiberari  fac'.'  And  yet  it  caimot 
be  said,  that  ollhouEb  <!ie  king  recited  in  his 
writ  ihat  the  archbishop  hud  signified  unto  him 
that  lie  had  written  unto  the  official  of  the 
archdeacon,  cliat  the  king  said,  that  the  arch- 
bishop had  wrilten  ;  for  he  doth  not  affirm  so 
much  precisely,  but  only  referreth  himself  unto 
the  certificate  uf  the  archbishop. 

Ploirden  192.  Buck  I  ^  and  River's  cnse,  it 
is  put.  That  if  a  man  will  bring  an  action  of 
dtbc  upon  an  obliifation,  and  declare  that  it 
appears  by  the  obligation  that  the  defendant 
stood  bound  to  tbe  plaintiff  in  SO',  the  which 
he  hatb  nut  paid,  tliis  declaration  i<  not  good  ; 
insomuch  as  it  is  not  nlledged  by  matter  in 
fact,  that  he  was  bound  unto  him  in  SO/,  but 
the  deed  is  alledgcd'hy  recital  only,  91  Ed.  4, 
43. 

Plowden  Com.  136  ic  143.  Browning  and 
BeesCon's  Case, 

The  Abbot  of  Wallham  being  appointed 
collector  of  a  Disme  granted  unto  tbe  king,  in 
discharge  of  liiiuself,  in  the  Eichequer,  plead- 
eCh,  '  Quo  inter  reconiat'  Ter.  Pasc.  anno  ]5. 
'  riomini  Regis  Edwardi  1  inter  aha  continetur 
'  quod  K.  3.'  had  granted  unto  the  piedecesson 
of  the  said  Ahhot,  that  he  nor  any  of  his  suc- 
cessors should  he  any  collectors  of  any  disme* 
to  he  ttranted  afterwards,  and  it  waa  adjudgtd 
that  this  pies  was  iU, 


«]  STATE  TRIALS,  aCHAw-Eal.  1627 — brought  by  Sir  T.  Damd,  and  oihcn.    [« 

de  ClifTordVlnn  ;'  tind  upon  hi?  return,  John 
'nrker  was  bHilctl :  fur  the  relum  '  Cnmmiss. 
fuit  per  ipeciflle  lu  mid  alum  domiai  regit, 
nuiH:intuni  per  Koberitiiii  Peck,'  wai'  not 
luch  that  ■  -       :■      - 


For  the  saying  <  Tt  wbi  contained  amung 
the  lUconis,'  it  is  no  precise  HJiinDHtioii  thnt 
the  king  had  granted  lo  hb  predeceeson,  that 
ibejr  ihoDJd  be  discharged  nf  the  coUecling  anj 
dismej,  but  it  is  onl;  an  atlegatioH  b;  waj  ol 
Rciiil,  and  not  b;  precise  attirinMion,  Che  plen 
nitjDot  be  good. 

3  &  3  Mar.  D;er  117.  &  118.  the  plaiatiff'!! 
mhr  in  bar  of  all  plendeth,  thac  Jolm  Abbot 
Df  W.  was  seized  of  his  lands  in  right  of  his 
duirch,  and  so  seiied  by  tlie  assent  uf  the  le- 
mot  hj  indentare,  14  H.  4,  '  lestat'  quod  prc- 
'dict'  Abbat'  et  cunvent'  demiseniac  et  trnt'' 
'daunt'  unto  ibe  plaintiff;  and  ruled,  th 
ihii  linm  of  pleading  was  ill,  Injomucb  as 
wn  not  allfdged  b;^  precise  affimatiati,  '  quod 
'  dcmiserunl,  aed  indentura  Eeilatur,  quod  de- 
'miteniat;'  which  it  not  auHicieiit,  insoiunch 
aitl  ii  onlv  BD  allegation  bj  wajr  of  re 

tbu  tlie  indenture  dath  wiineis,  and  the  l 

indeDtnte  roaj  witness  so  much,  and  yet  not 
lieadetnise. 

And  if  in  pleading  there  must  be  direct 
tSnnitian  of  tli«  matter  dledged,  iLien  i  for- 
liori  in  a  return,  which  must  be  more  precise 
tW  in  pleading;  and  so  faj  all  the  cniei  I 
hare  fbnaeHy  touched,  it,  appeareth  that  this 
nlnrn  is  no  eapress  affirmation  of  the  keeper 
«f  tbeGatahouse,  that  sir  John  Corbet  is  de~ 
uiaed  in  prison  bj  the  tpecial  commandment 
of  the  king,  bat  only  an  affinnation  of  the 
kcdi  of  tbe  council,  who  had  signified  unto 
km  that  hii  detainment  in  prison,  was  by  spe- 
ciil  comnuuid  of  the  king. 

Tbe  retom,  which  ought  to  be  certain,  and 
faactnal,  uad  affirmative,  and  not  by  the  way 
of  inStmiBtioii  out  ofunother  man's  mouth, 


i.  3,  Rex  vi^'iei.  upon  a  Homine  re- 
.  ^  J(>,  against  (he  Abbot  of  C.  the  ■hcriff 
retamrth  thnt  be  had  sent  lo  the  teiliff  of  the 
abbot,  that  answ^ed  him,  that  be  was  the  vil- 
lan  of  tbe  abbot,  by  which  he'  might  not  moke 
deliTenuice,  and  a  Sunt  alia*  was  swanled,  Ibr 
hb  retum  was  inaufficieot;  iilsomuch  that  he 
kid  returned  tbe  answer  of  the  bailiffof  the 
shhot,  nhere  be  ought  to  have  returned  the 
answer  of  the  abbot  himself  out  of  his  own 

Triu.  33  E.  3,  Rot,  46.  parent'  vilJ'  et  Burg. 
ETO((iie  de  Norwich,  repf"  08.  Nat.  Br.  Case 
31.  Fdi.  Nat.  Br.  C5.  &  S4  E.  3,  Excom'  39. 
the  case  appearcth  to  be  >uch  in  a  trespass; 
^defenilaDt  pleadeth  the  plaintiff  is  excom- 
iDsnicate,  and  sheneth  forth  the  letter  of  the 
hisbop  of  Liucols,  witnessing  that  fur  divei-s 
DMtnmacicB,  Ike.  and  because  lie  had  certified 
DorjnBNMuaic'daoe  by  himself,  but  by  another, 
ibe  Ituer  of  eicommiviication  was  annulled, 
Ibr  Uie  bishop  ought  to  hare  certified  his  own 
■et,  and  not  tbe  act  of  another. 

UiUani  81  H.  8,  Rot.  37,  it  appeareth  by  the 
wluro  of  an  H.  Corpus,  that  John  Parker  was 
craunitted  to  prison  for  security  of  the  peace, 
<sd  for  suspicion  of  felony,  as  '  per  mandatum 
I J        :  J  per  Robertum  Peck, 


that  be  was  committed  ■  per  manduium  domini 

And  for  the  first  pa'riit,  I  conclude,  that  this 
return  ia  iusulhcient  iu  lurni,  iiisonmch,  that  i\ 
doth  not  make  n  preciiie  and  direct  return,  that 
he  was  committed  and  detained  by  the  special 
command  of  the  king,  but  anlv  as  it  wis  signi' 
Sed  by  the  warrant  of  the  lords  of  the  council, 
which  will  mil  serve  tbe  turn.  And  upon  ibe 
book  of  9  H.  6,  44.  the  return  of  the  fuuse  of 
a  man's  imprisoninenc  ought  to  be  precise  aiiil 
direct  upon  the  H.  Corpus,  insomuch  as  There- 
by to  be  able  to  judge  of  the  cause,  whether  it 
he  sufficient  or  not  i  for  there  may  not  any 
doubt  he  taken  lo  the  reium,  be  it  true  or 
false,  but  the  court  is  to  accept  the  same  as 
true;  and  if  it  be  false,  the  party  must  take 
bis  remedy  by  action  upon  the  casp . 

And  ai  concerning  tbe  matter  of  the  relum, 
it  will  reM  upon  these  parts:  1.  Whether  the 
return,  that  he  is  detained  in  prison  by  special 
commandment  of  our  lord  the  king,  be  good  or 
not,  without  shewing  tbe  nature  of  tlie  coni- 
maudmenC,  or  the  cause  whereupon  the  com- 
mitment is  grounded  in  the  return  }  3.  Whe- 
ther the  time  Qf  tlie  first  commitment  by  ibe 
commandment  of  the  king,  not  appearing  to 
the  court,  is  sufficient  to  detain  him  in  prison  } 
3.  Whether  the  imprisonment  of  tbe  subjects 

without  cause  shewed,  but  only  by  the  rora- 
mandment  of  the  king,  be  warrantable  by  tha 
laws  and  statutes  of  thij  realm  f 

As  to  the  first  part,  I  find  by  the  books  nf 
our  law,  thnt  commandments  of  tbe  king  ore  of 
several uatures,  by  soma  of  which  the  imprison- 
ment nf  a  man's  body  is  utterly  unlawful  :  and 
by  Dlliers  of  them,  although  tiie  tmprisoninenc 
may  be  lawful,  yet  the  continuance  of  him  with- 
out bail  or  mainprise,  will  be  utterly  unlawful. 
— There  is  a  verbal  command  of  tiie  king, 
which  is  by  word  of  mouth  of  the  king's  only; 
and  such  commandment  by  the  king,  by  llie 
books  of  our  law,  will  not  bo  sufficient  either 
to  imprison  a  man,  or  to  continue  him  in  pri- 
son, 16.  6.  '  Monstrans  de  fnict  si,'  upen  an 
action  of  trespass  brought  for  cutting  of  trees, 
the  defendant  pleadetb  that  tbe  place  where  tie 
cut  them  is  parcel  of  the  manor  nf  D.  whereof 
tbe  king  is  seized  in  ler,  and  the  king  com- 
manded him  to  cut  the  trees:  and  the  op  in  i  en 
of  the  court  there  is,  that  tlie  plea  in  bar  nus 
ill,  because  he  did  not  shew  any  special  com- 
mandment of  the  king ;  and  there  it  is  t^reed 
by  the  wboie  court,  tiiatif  theking  commandelh 
arrest  another,  and  the  party  ccnmand- 
airett  the  other,  an  action  of  trespass  or 
false  imprisonment  i^  mainiainable  against  the 

irty  that  arrested  him,  altbouiib  it  were  d<me 
theprat^enceofthekintt,  39  H.  6,  17.  whera 

le  justificth  the  seizure  of  the  goods  of  a 
person  that  is  outlawed  by  (be  commandment 
of  tjie  kiog,  such  a  party  being  uo  olliccr,  luajl 


S3]     ^ATS,T&lAi^,iCBjMMh  l6'J!l,~PncMdKvi(mihtH<J>eiaCDi]m,    £«« 


not  in  BD  actioi)  brougkl  ftgaiut  Iijeq  hava  an; 
aid  of  ib«  kid);,;  for  such  a  comiiMDdaient  fliven 
to  one  that  it  n-A  an  officer,  will  noE  any  wayi 
avail  faini,  tliat  u  to  justily  bimMlf  ^y  tb«  K- 
lurn  of  that  commaadiuetit. 

SrB.  6, 10.  If  the  king  give  vWathingiand 
I  lake  iheBame  bj  bis  comniandmcnt  tiy  vord 
.  of  tnoudi,  it  is  not  justified  b;  Uwj  nuUiing 
may  pnu  without  matter  of  record. 

10  H.  7, 7.  end  17, 18,  it  ia  agreed. that  jii»- 
li<^l  ma^  commalld  ooe  to  irreit  anotber  that 
i»  iu  tbcir  view  ur  (jreaence,  but  not  ddc  that  ii 
out  of  their  view  or  pretence.  (1  Croke.  Hoi- 
lida;  V.  UieDbridec) 

And  Keble  10  U.  7, 13,  laid,  that  where  one 
ii  arreited  bv  a  parol  command  ia  iheir  view 
or  preKuca,  it  ii  fitting  that  a  record  ma;  be 
■Sado  of  it,  insomuch,  iliat  without  auch  a  re- 
cord there  can  hardlj  be  a  jottificatioD  in  ano- 
ther temk. 

3.  There  is 


titej  wi  «*«rj  of  tboD  6nd  wtetwc  h)  puniie 
tlietr  augg«stioiM,  and  endure  the  aane  pain  a* 
the  other  thould  have  had  ia  caae  that  hit  wfr 
gestion  he  found  unmie:  and  that  U>»i  procew 
of  the  law  heoiada  acainat  them,  without  bsiog 
takea  or  impiitons^  against  the  form  of  tlw 
MOW  chaiter,  and  other  statutes. — So  that  it 
appear*  by  the»e  seveW  atatuiaa,  that  aacb 


of  the  king  hj 
hich,  according  to  Calvin't 
case  in  Coke's  7ih  Report,  it  ia  caQed  by  him, 
'  brere  maodatum  nan  Tcmediabile;'  and  by 
Tirtoe  of  inch  a  coomnndment,  the  king  may 
□either seize  the  goods  of  lus  tubject,  nor  im- 
prison his  bodjr,  aa  it  is  readied  m  49  Am.  pi. 
5r  where  it  i>  agreed  by  nil  ihc  justice!,  that  a 
commluion  to  take  a  man's  good*,  or  imprison 
bis  body,  without  indictment  orsuit  of  the  party, 
or  other  due  proceaa,  ia  against  the  law. 

3.  There  a  a  commandment  of  the  king, 
which  is  grounded  upon  a  suggestion  made  to 
the  king  or  to  his  council;  and  if  a  maa  he 
coininitted  to  prison  bv  luch  a  tuneation,  t^ 
commandment  of  the  king,  it  is  an&wfii^  and 
not  wmronted  by  lh«  law  of  the  reabn. 

The  35  of  E.  3,  cap.  4,  Da  Proviaionibui, 
where  ,it  is  caotaiDed  in  tfae  Great  Charter  of 
the  francliises  of  England,'  ihat  none  shall  be 
inprisooed  or  arrested  of  his  freehold  or  of  his 
A^uichisea,  nor  of  his  free  cuatoma,  but  by  the 
law  of  the  land. — It  ia  awarded,  consented  and 
catahlisbed,  that  from  bencsfotih  none  ahall  be 
taken  by  petition  or  kuggeation  made  to  oar  so- 
vereign lord  the  Itinf,  or  to  hie  council,  until  it 
be  b^  indictment  or  presentment  of  his  good  and 
Iswuil  neishboura,  where  such  deeds  are  done 
due  maimer,  or  by  procesamade  by  writ  ori- 


itthe 


ir  that  1^ 


be  arrested  of  bis  fmnchiae^  tior  of  bis  freehold, 
unless  be  be  duly  briiuitht  io,  and  anawar,  and 
forejudged  of  the  same  by  way  of  law  :  and  if 
any  thing  be  done  agninst  tbe  same,  it  sbaH  be 
redressed  and  holden  for  aouKht. 

37  £.  3,  c.  10,  although  it  be  contained 
tbe  Great  Charter,  that  no  nan  b«  taken  or  iiD- 
[visoned  at  put  out  of  his  fteatold,  withoiM  doe 
proceeaof  tbekw;  nererthelesi,  diveta  persona 
make  false  auggutwni  to  tha  king  hmudf,  •* 
well  for  malice  as  otharwiae,  whereby  the  kmg 
iioften  grieved,  and  divers  of  dM  lenhn  put  in 
great  dunBg«s,o>nD:ary  tstliefoimDrthesanM 

Wherefore  it  is  ordamed,  that  all  tbty  that 
make  such  suggestions,  be  sent  with  their  sug- 
geitiona  to  the  CfaanGdior  or  Trcewrer,  and 


upoD  suggestion,  either  made  to  bim»elt  or  to- 
his  cou»ctl,  for  the  imprisonmant  of  a  man,  ar* 
against  tbe  law. 

f  ouKhly,  1  find  that  there  is  a  commandment 
of  tlie  king  which  is  made  under  his  hand)  wiik 
lis  signet ;  for  io  1  and  S  of  Philip  and  Hkj^ 
Dyer  183,  where  the  statnte  of  1  Bic.  3,  c,  11, 
restraineth  the  Warden  of  the  Fleet  for  letting 
any  man  at  large  that  ia  in  npoo  judgment  at 
tlie  suit  of  any  man,  eic^t  it  be  by  writ  or  other 
commandment  of  tbe  king;  it  was  doubted, 
whether  the  queen  by  letter  under  her  bud  and 
privy-signet  doth  give  eommandment  to  tb* 
Warden  of  tbe  Fleet  to  suffer  a  man  that  is  tber* 
in  execution  to  go  about  hi)  busioess,  or  the  afc 
&ira  of  the  queen;  whether  this  be  a  wananU 
able  command  or  not  within  the  BtaUta:  and 
ibe  law  bath  always  been  conceived  upoA  thai 
book,  that  such  acooimandmentia  not  warrwh 
aWe  by  law.  And  if  such  a.  command  wiU  not 
serve  the  turn,  to  give  unto  a  man  hii  libntyt 
which  the  law  favo»reth,  and  had  thecoonle. 
nance  of  an  act  of  padiamau  fot  the  doiag  of 
it ;  then  I  conceive  it  libould  be  a  more  stroi>g 
case,  the  king  .should  not  have  power  by  hu 
commandment  to  impriaan  a  map  without  due 
process  of  the  law,  and  restrain  him  of  Ilia  libeitj, 
when  there  hod  been  so  many  acts  of  pa(li«- 
ment  made  tor  the  liberty  of  tbe  aulgccu. 

Firtbly,  I  do  find  that  there  ia  tlie  command* 
ment  of  tbe  kiug.whidiisby  his  virit  under  th« 
great  seal,  or  the  aeal  of  tbe  QDurt  out  of  which 
It  issueth,  R^iati  f.  09,  and  70.      In  the  wiii, 

<  De  CBUtione  admiuenda,'  I  find  the  words, 
'  iiiandatum  re^'  expounded  to  be  '  fareve 
'  regis,'  (ot  the  writ  goeth :  1  Rei  vie"  aalatcm. 
'  Cum  ouper  ad  requisiiionem  S.  de  Isle  caii»< 
'  nici  Lincolne  venen^iilie  patria  H.  lincola. 
'  Epiacopi  ipso  in  icmatis  agente  vicarii  gene- 
'  laL  per  litem  suas  patentes  nohis  stgnibcan- 
'  tea  NiclM.  B.  diet.  Lincoln,  dioc   propter 

■  manifintam  contumaciam  authcritata  ipnn* 
'  epiicopi  ordinar.  excommunicat,  ease  nee  si 

■  velte,  6tc.  vobis  prsceperimoa  quod  prcfat. 
'  &c.  aatisftctum  ex  parte  ipiiu*  N.  qui  virtuto 

■  mandati  nostri  pnadict.  per  vos  cafjt.  «:  Ift 

<  prison,  nostra  de  HeWBate  detent,  eiistit,  &c. 
'  nog  nolentea  quod  pna&t.  N.  per  breve  nos- 

■  Irmn  pnadict.  via  prsdudator.  Sec.  prosequt 
'  posait  in  forma  jniis  masim.  &c.  integer  csaa 

■  debeat,  vobia  ptsacipimus  quod  scire,  &c.  quod 
'  ait,  Slc  quare  pradwt.  N.  a  prisooa  pradict. 

■  deliberan  Don  oebeat,     Rexjuattciar* suisd* 

<  Banco  saint.  Cum  n»a  nuper  ad  significa- 
.  '  tinnem  3.  de  Isle,  &c.  usque  ibi  excoinmant- 

'  cat.  exrilisse,  nee  ae  valle,  &c.  easet  aatisl«c> 
I*  N.  virtute  mandati  nottri 


9()  ^ATE  TKbUA  lC«uui  L  iain.-n4ra«hti)r  Sir  T.  Dmui,  and  oOen.    [9ft 


<mc  4«tau^  Bu,  ct  aolentw  «o  pneleuii 
■pnbtoN.  pcrbi**enMtru>'pmd.«uipn»- 

<  cl»d».  <]«o  mnuit  umUu.  win  u^Dtitun,  &c. 

<  pomMnU  Mappalunt.  itttut.  2w;  per  W«vc 

<  Mtnun  pwcByMiBWfc  pic&t.  nc  ^od  icirc 
'ficecU,  &c.  tobn  ligDifio.  M  ooMuk.  ct  oii> 
■monpocL  in  pUcitii  per  b«e«e  predict  comm 


'  dm  legem  et  connMadioun  iqni  ■oiui.' 

SaC  79,  A  E.  S,  G.  a.  1  E.  3,  c.  9^  witk,  tbu 
(ittj  Cq|HM  b  a  pwaookl  mctioa  U  •  eom- 
wOMAmui.  of  the  tuB^  fbr  jt  is  <  PMcipkMu 
'  nbi  qKid  ca^uW)'  &b  and  jct  tha  difeukiit, 
« thm  it  if  Hid,  ■  mienMbki  by  the  eomnoo 
In.  TK.  8tV>.  Cabin'i  CaM,  nitbtTliat 
lk^tiMt<n>kuidoCwiiti,Tk. '  br«mm«Bd»- 
'  una  ct  imn'riiriia,  e(  tftem  in— dttnm  m 
'  iwniwritHJii.'  finuaiMiidatofiaMreoM- 
4b^  we  miti  of  ndrt,  faiMd  Ml,  &c.  dibti, 
kf^NMi^and  ihortly  «ll  wiiteiealaBdi  pw 
VhI,  vberet^.tbe  painjt  wTonged  is  to  kootct 
HMwbUi  and  lobe-rovediedfiir  that  wroi^ 
•hich  iidpae  HiCo  htsh. 

faxtbh,  I  do  find.^  om  books  of  Ian,  and 
\f  the  HmiMrr,  tlwt  tint  special '  DtandaUiai 
I  ^skIbI  lep^' is  eipoanded  to  b*  tbis  lait,  and 
llM  (he  la«  tahetboo  BOlka  of  anif  otfaer  ■  a»- 
<  dsli  «anilMnni,'  than  bj.  this  writ.  Tb« 
whitfa  being  so,  whaa  d)a  rebsn  is  atada,  ibm 
ts  is,ieifri)oiMd  and  dataiDed  in  prison  bj  th 
tpHjsl.cemmwidaentof  tbaltin^bowcan  thi 
(ovt  a^udga  upon  diis  reMrn,  that  «r  Johi 
Csthet  oogbt  to  he  kept  in  prieoa,  and  not  to 
hbailed;  «A«ndMBatnMof  lteipeciii< 
■siHMWit  ifciMt  set  fiwth  in  the  reowp,  »l 
\j  it  mm  sw*"  ""''>  *^  ^"^^  ^l  ^  ' 
bsiUikf  la  Bifcion.  e.  19,  llSt  jvu  shall 
'  Pnscipimue  tibi  qood 
i  pennittBs 


capitaUa  j  uiticiir' 
I  is  Rirew,  <  Qaia 


tri  Aoglia  replefiabilesexiafaut,Src.  tunc  iat- 
pos'  C.  &.  n  £.  a  ndsene  predict.  li  ta  occa- 
sioae.  M  dod  alia  detiiMimtur  in  eadem,  iot*- 
rim  deliberan  (ados  per  maoucapt.  supnditt, 
St  hsbeai  tibi  tone  coran  pi^ht.  justiciaF. 
Dwniaa  BMUWCBpt.  illocuDi  «t  fc«c  breve.' 
Asd  ibe  ezppnuaii  of  tbii  *  tpeciale  manda- 
tum  domiai  reoii,'  meatioaed  in  thp  Writ,  i» 
eiponnded  to  Be  '  breire  domiai  r^is,'  and 
diereapoa  is  this  writ  directed  natotlie  ihcriff 
for  ibe  dtliTer^  of  tbtm. — And  so  miicb  for  tbe 
first  bfancb  of  the  Snc  pan :  I  cooclude,  that 
tbe  spenal  comnand  of  the  bng,  wiibout  shew* 
iag  toe  nalnre  of  the  mmnandnieot  of  tliB  kii^ 
is  loo  nneral,  and  therefera  inMiOcient;  for 
be  oopw  to  have  ratunwd  the  nature  of  die 
comnuHMiiBaM  of  ibe  king,  whereh;  tbe  coart 
BSgbt  ban  adjodged  iukid  it,  whether  it  were 
nch  acamniewdineBt  that  tJie  impnaonmeot  ttf 
nr  John  Codiet  be  lavrjul  or  not  i  and  nhether 
it  were  such  a  conunandment  of  the  king^  that 
although  tbe  iuptisoBineitt  were  lawfnl  at  fint, 
jet  be  night  be  bailed  b;  Ian. 

Aj«t  as  for  tbe  general  ictain  of  <  speciale 
'  tnandaiMw  domim  tegif,'  witboat  ihewing  the 
cause  of  the  impriwsmant  either  apeGial  or  ge- 
i)«al,  I  bold,  that  for  that  canse  also  tbe  return 


oeptioa  of  special 
i_  .  ^ 

Begist. 

VI,  the  Writ  of  Hitnncsptioa  goelh  in  this 
■uaer. :  '  Kex  vie.  saluc  cum  nupar  asiignn- 
•  nrimns  dilectna  (£  fideles- nostros  A.  B.  et  C. 
'  D.  sd  iaqaishionea  de  fontaUariii,  et  tiaaa. 
lakibH  coBira  fbnnam  siatali  dadom 
WiuoD.  editi  in  com.  tno  fodand.  et  ad 
qiwsinde  calpabilet  insenirent.  capieod. 
1  pnsona  ncctra  salT«  cnetod.  faciMid.  do- 
a&adind-  ~    ~ 


<.iWq 


IB  et  ttanogres- 
-  BoouHa  aDoe  conm  pmrnf.  A.  B.  ta  C.  D. 
'  udict.  fnerint,  capt.  et  ia  prisona  de  L.  detent. 
*  eiitt.  i  qua  deliberari  ikhi  posiont,  sine  mao. 
'daio  nustro  speciali,  nos  lolentes  eisdem C. 
'p.et£.^tiam  in  bac  parte  taoreipecialem, 
'  tibi  pracipiinus  quod  li  pradict,  C,  D.  ct  B. 
'  occatione  pradict.  et  noo  alia  in  prison*  prs- 
li..  J..- 1,^  ^  pj^  tnuapeiiMonibos  iltis 


Eitst,  ia  regard  of  the  HabcatCorpiu,  which 
ia  tba  eommandiaeat  of  tbo  king  only,  nnda 
tbe  latb  of  Novmiber. 

Accmding  to  tbe  teste  of  the  Writ,  command- 
iog  tlie  keeper  of  tbe  pate-bouae  u  have  tba 
bodir  ofur  John  Corbet, '  una  ciua  causa  de- 
'  tCDtioiu*,  et  ad  subjicieiidimi  e»redpiendiun 
'  ea  qnai  coria  aoitra  dc  eo  ad  tunc  ibid,  ordi- 
'  nar.  contingal' ;'  so  ns  tbe  conuDandnent  of 
tbe  writ  being  to  abet*  tbo  cause  of  hie  detain' 
ii]giapiisoo,th*k«efwrafthc  Gate-hoete doth 
not  give- a  fall  answer- uato' the  writ,  udIcm  the 
cauieof  thBdetnameat  io  prison  be  returned; 
and  the  ooort  doth  not  know  how  to  gire  ibcir 
Judgment  upoa  biip,  either  for  bis  unj>rison- 
ment,  or  for  hia  disclmrge,  accoTiting  to  the  putt, 
pott  of  the  lirit,  wbea  iberc  is  not  a  cnuie  re- 
tamed.  And  forasmuch  as  opon  an  Eicont- 
meDgCMmt  certified,  it  hath  been  ai^ndgcd 
(AentimM  that  certificates  were  insuificient, 
wbare  the  cause  of  tbe  commiBiieot  bath  not 
been  cettiSed ;  that  the  court  might  adjudge 
wbetbir  the  ecdoMStical  judees,  who  pro- 
aomwed  tba  eocomauiniaalioa,  bad  power  over 
the  ot^oal  cajiie,  aeeoniing  to  ihe  book  of  14 
H«a.  4,  U,  S.  Rep.  68.  IWIap's  case,  and  90 
Edw.  3,  EioommcDgemcat  9. 

So  upon  an  Habeas  Corpus  in  this  coart, 
where  a  man  hatb  been  commiited  b/  tbe 
Chancellor  of  BngUnd,  bj  the  Council  of  Ei^- 
land,  Marches  of  Wales,  Warden  oF  tbe  Stan- 
naries, liich-Comaiisnoit,  Admiralty,  Dntchj, 
Court  of  Retjoest,  Coeunissinn  of^Senera  or 
Bankiopts;  il  hath  several  ikoes  been  ad- 
judged that  the  return  «^  insufhcieot,  where 
the  particular, cause  of  iraprisonment  hath  not 
been  Aewn,  to  tbe  intent  rhat  it  mi^ht  appear, 
th«t  those  that  committed  him  bed  juriaclicCiDD 
over  the  cause,  otberwise  he  ought  »  be  dis- 


ST]    ,  STATE  TRIALS,  a  Chahles  I.  1927 — Proaedmgi  m  lie  Hahtoi  Corpus,      [ft 


cbBrge<l>b;r  the  Im*  ;  and  I  jpare  lo  recite  p»r- 
tjcuttir  CHUsei  in  every  kind  of  these,  becuiie 
there  arew  tu any  precede nts  of  them  in  several 
ages  of  every  kjng  of  tliis  realm  :  and  it  ii  an 
iotidlibie  maxim  of  the  law,  That  as  the  court 
of  the  KingVBench,  aud  Judge*,  ou|;ht  not  to 
dcnv  an  Ilnbeas  Curpus  onto  aoy  pritoiier  that 
•haU  dciDRnd  the  same,  by  wliumsoerer  be  be 
couiitiitted;  so  ought  tbe  cause  of  his  imprison- 
ment to  be  shewn  upon  the  return,  so  that  the 
court  mny  adjudge  of  (be  cause,  wheilier  the 
GuuiL'  >if  the  imprisonment  be  lantul  or 
Aud  because  I  will  not  trouble  ibe  court  with 
ao  iiuiny  precedents,  but  such  as  shall  suit 
the  ciiuse  m  queiition,  I  will  only  produce  and 
voudi  such  precedents,  where  the  party  wis 
coinuiitted  either  by  the  commandment  of  the 
king,  or  otherwise  by  the  commnndment  of  the 
phvy-couiicil,  which  Stamford,  fol.  Ti.  tcrmeth 
the  mouth  of  the  kinfi ;  such  acts  as  are  done 
by  the  privy-council,  beine  as  acts  done  by  thi 
kinehimself. — And  in  all  Uiese  causes  you  Ghall 
find  that  ther«  is  a  cause  reuirned'ai  w>  " 

*  a  speciote  mandatum  domiui  regis,  &c 

*  mandatum privnticonciliidomini regis,' where- 
by the  court  may  adjudce  of  the  cause,  and  hail 
them  il  ihey  shuH  see  cause. 

In  the  8lh  Hen.  7,  upnti  return  of  an  Habeas 
Corpus  awarded  fur 'the  body  of  one  Kogei 
Sherry,  it  appeareth  that  he  was  catnmiited  by 
the  ronyor  of  Windsor  for  suspicinn  of  fclony, 
and  '  ad  «ectam  iptus  regit  pro  quibusdam  feli>- 

*  nils   et  trBDser^onibus  ac  per  mandatum 

*  domini  regis;  SI  H.  7.  upon  the  return  of  an 
Habeag  Corpus  «tnt  for  the  body  of  Hugh 
Pain,  it  appeared  that  lie  was  committed  to 
priwn,  '  per  maodatum  dominonim  priraci 
'  consilii  aoioini  regis  pro  suspiciam  feloniEe.' 

1  Hen;  8,  Rot.  9,  upon  the  return  of  an 
Habeaa  Corpus  tent  for  the  body  of  one  Tho. 
Harrison  and  others,  it  appears  that  they  were 
committed  to  tlte  earl  of  Shrewsbary,  being 
marshal  of  the  houshold,  'per  mandatum  do- 
'.  mini  regis,  et  pro  suipicione  felonia*,  et  pro 
'  houiicidio  (acta  super  mare.' — 3  et  4  Philip. 
et  Mariie,  upon  a  return  of  an  Habeas  Corpus, 
sent  for  (he  body  of  one  Peter  Man',  it  appear- 
eth  that  be  was  committed  '  pro  suipiciojie 
'  felonia,  ac  per  mandatum  domini  regis  et 
'  r^ina.' — 4  et  5  Philip  et  Marias,' upon  the 
retitrn  of  an  Habeas  Corpus  seat  for  the  body 
of  one  Thomas  Newport,  it  appeared  that  he 
wal  committed  t«  ihe  Tower,  '  pro  luspit^ione 
'  contrafact'  moneUe  per  privatum  concilium 
'  dumiiii  regis  et  reginc' — 33  £lii.  upon  the 
return  of  an  Habeas  Corpus  for  the  body  of  one 
Laurence  Brunn,  it  appeared  that  he  was  com- 
mitted, '  per  mandatumprivBticondlii  domioE 
'  regins  pro  diveisii  caiuis  ipsam  reginam  tan- 
'  gent'  ac  etiam  pro  suspicione  proditionis.' 

So  as  by  all  tliese  precedents  it  appenreth 
where  the  return  in  eiiner,  *  per  mandatum  dn- 
'. mini  regis,'  or  'per  mandatum  domihotum 
.  '  prtvnti  coocilii  domini  regis,'  there  is  also  a 
cause  over  and  besides  the  mnuialum  return- 
ed. As  to  that  which  may  be  objected,  that 
'  per  mandatuiQ  dotnioi  regis/  or '  priroii  con- 


'  cilii  domini  regit,'  is  a  good  rctnm  of  his  im- 
pnionincnt,  I  answer, 

1.  That  there  is  a  cause:  tor  it  ii  not  lo  bt 
presumed  thai  the  king  or  couucil  would  com- 
mit one  to  pnsoa  without  some  oSence;  and 
therefore  this  ntaniiatiim  being  occasioord  by 
the  oSence  or  fautt,  must  be  the  cause,  and 
not  the  command  of  the  king  or  council,  which 
is  occasioned  by  fix  cause. 

3.  It  appears  that  the  jurisdiction  of  the 
privy-council  is  a  limited  jurisdiction,  for  they 
have  no  power  in  all  cauiei,  their  power  briag 
restrained  in  certain  causes  by  several  acts  at 
parliament,  as  it  appet^eth  by  the  Stat,  of  SO 
E.3,c.  11.85  E.  3,  c.  I.Stat.  4.  (vide  4  Instit 
p.  »i.)  the  private  petition  in  parliament  pei^ 
roitted  in  the  1  R,  a,  where  the  comiaons  peti- 
tion that  the  privy-council  might  not  make  any 
ordinance  against  the  common  law,  cuslouu  or 
statutes  of  the  realm;  the  4  H.  4.  cap.  3.  13 
H.  4,7.31  H.6.'  And  theirjurisdicUMi  being 
a  bmited  jurisdiction,  the  cause  and  grounds  oV 
their  commitment  ought  to  appear,  whereby 
it  may  appear  if  tbe  lords  of  the  council  did 
commit  mm  for  such  a  cause  as  was  within 
ibeir  jurisdiction;  for  if  th«  did  command  me 
lo  be  commilted  to  prison  lor  a  cause  whereof 
they  bad  not  juntdictioo,  tbe  court  ought  to 
discharge  me  of  this  imprismiment.  Anil  bow- 
soever  the  king  is  '  Vicarius  Dei  in  terra,'  yet 
Bntcion,  cap.  S,  fbL  107,  saith.  '  (jood  nihil 
'  aliuil  potest  rei  in  terris  cum  ait  minister  Dei 
'  et  vtcariuE,  quam  solum  quod  de  jure  potest, 
■  nee  obsiat,  quod  dicitur  quod  principi  placar, 
'  I^Ih  liabet  vigorem,  quia  sequitur  in  fine  iegi* 
'  com  lege  r^a  (juie  de  ejus  imperio  lata  at ; 
'  id  est,  lion  quicquid  de  voiuntate  regis  temere 
'  prabumptum  est,  aed  animo  condendi  jura, 
'  sed  quod  conulio  ma^tratuam  luoram  rege 
'  author,  prKStant,  el  habita  super  hoc  delibei»- 
<  tione   et   tract.  recL  flier,  detinit.  potestat. 

which  being  so,  then  also  it  oo^ht  to  ^p*" 
upon  what  cause  the  king  commilteth  oiie  w 

Srison ;  whereby  the  judges  which  are  indif- 
ircnt  between  the  king  and  liis  subjects,  may 
judge  whether  his  commitment  be  against  the 
laws  and  siaiutea  of  this  realm,  or  not. 

3,  it  is  to  be  observed,  that  the  king's  com- 
mand by  his  writ  of  Habeas  Corpus,  is  since 
the  commandment  of  the  king  for  bis  commit- 
ment; and  this  being  the  latiercommandmeaC, 
ought  to  be  obeyed :  wherefore  thai  command- 
ing a  return  of  the  body  '  cum  causa  detetl- 
tionis,'  diere  must  be  a  return  of  some  other 
cause  than  '  per  maodatum  domini  regis,'  the 
same  comotandment  being  before  the  return  of 
the  writ. 

Pasch.  9  E.  3,  pi.  30,  fol.  56,  upon  a  wnt 
of  Cessavit  brtiuebt  in  the  cooniy  ol  Northum- 
berknd,  the  DeSndants  plead.  That  by  reason  ■ 
of  the  county  being  destroyed  by  wnis  with  tlie 
Scots,  king  Ed.  2  gave  command  that  no  wnt 
of  C'essnvit  should  be  brouglit  during  the  wara 
with  Scotland,  and  that  the  tiiog  had  sent  his 
writ  to  suroease  the  plea,  and  be  avetretli  ibU 
the  wan  wtth  Scotland  dill  continue. 


W\    STATS  TRIAI3,  3  Cimrlbs  I.  1  ft27 — brought  by  Sir  T.  Darnel,  and  oihtrs.     [SO 


UeaHc  tiMt  gimh  the  nil«  niih,  That  we 
h«ve  commBod  t>7  ibe  king  that  now  i«,  to  '-'-* 
Ifais  plei,  wber«fore  we  will   not  snrceaa 
BOT  writ  of  Ihe  kingtliat  is  dead.     And  so  upoa 
an  these  rewons  &nd  precedenia  tbrmerly  lA- 
Icdged,  I  amclade,  that  the  ntum  that  sir  John 
Corbet  whs  committed  and  detained  in  prisuD, 
'per  ipecinle  mandalum  domini  re^is,' without 
sbewii^  ibe  nature  of  Che  (ommsndinent,  by 
which  the  coon  maj  judge  whether  the  com- 
mandmentbeofiuch  a  nature  as  he  ought  to  be 
delaiDediapriiod,  and  that  witlioutsbewin;   ' 
cause  upon  which  the  commandment  ofcbe 
iigroaiided,is  not  good.  As  to  the  eeeond  part, 
wiuck  ■»,  Whether  tbe  time  of  the  commilinent 
bj  tbe  return  of  the  writ,  not  appearing  UDto 
the  court,  the  court   ouglit  to  detain  hiui 
priMD,  or  DoM  conceive  tliHt  be  ought  not 
be  continued  id  prison,  admitting  thnt  the  lii 
commitmeot  b;  tbe  command  of  the  king  we 
lawlitl;  jet  when  be  bath  coatinued  in  prison 
bj  Bocb  reaaooable  thne,  as  ina]>  be  thought  lit 
m  that  offimcc  for  whicb  he  is  commiit^,  he 
(w^  to  be  brongbl  to  answer,  and  not  la  c 
tiane  still  in  prison  without  being  brought 
answer. — For  it  appears  bj  the  books  of 
laws,  that  Ubertjp  ia  n  thing  so  ftvoured  bj  die 
la*,  that  tbe  law  will   not  suffer  the  continn- 
taet  of  >  man  in  prison  for  any  longer  time 
tfaaaof  i>«cnsitj  it  must;  and  chererore   the 
law  will  neither  suffer  the  pnrt^,  sheriSj  or 
jadges  to  cantinue  a  man  in  prison  bj  their 
poaa-  and  their  pleasure,  but  dolh  speed  the 
delirttj  of  a  nan  out  of  prison,  with  as  ret 
able  eipeditiaD  a*  may  b«. 

Aad  upon  this  reason  it  is  resolved,  in  1  & 
9  El.  Djcr  175.  &  S  Ed.  4,  13,  ThU  faowso- 
«ter  the  taw  alloiteth  that  there  dibt  be  a  term 
between  tbe  testeofon  onginal  writ  and  the 
letBitiof  the  Mm*,  where  there  is  only  asum- 
moas,  and  no  imprisonment  of  the  body  ;  yet 
itwm  not  allow  tliat  there  shall  he  a  term  be- 
tween the  teste  of  a  writ  of  Capias,  nnd  the 
leram  of  tbe  same,  where  the  body  of  a  mnn 
is  to  be  imprisoned  :  insomuch  that  it  will  gire 
■o  way,  that  the  party  shall  have  any  power 
toomtintie  the  body  of  a  man  imprisoned  any 
laager  time  than  needs  must,  39  E.  S,  7.  10  H. 
7, 11.  6  E.  4,  09.  11  E.  A,  0.  48  E.  S,  1.  17  E. 
3,1.&  8  Hen.  7. 

KeUaWBy**  Reports  do  all  agree,  that  if  a  Ca- 
pias iball  be  awarded  against  a  man  for  the 
appiriietiding  of  his  body,  and  the  sheriff  will 
retnni  tbe  Capias  that  is  awarded  against  the 
party,  a  '  oon  est  inventus,'  or  ibat  '  laiigui- 
dns  est  in  prisona,'  yet  the  law  will  nlliiw  the 
partj  againM  whom  it  is  awarded,  for  (heavoid- 
mg  of  his  corporal  penance  and  duress  of  impri- 
KotmMat,  to  appear  gratis,  and  for  lo  answer. — 
For  the  law  will  not  allow  the  sheriff  by  his 
Use  reinm  to  keep  one  in  prison  longer  (hen 
aeols  most,  38  Asa.  pi.  39.  Brooks  imprison- 
oMDt  100  saitfa.  That  it  was  determined  Id  par- 
liament that  a  man  is  not  lo  be  detained  in 
praoB,  after  be  bath  made  lender  of  his  fine  for 
aa  impnsonraent ;  therefore  I  dctire  yoar 
Indibip   that  tir   Jobo    Corbet  may   not  be 


longer  kept  in  durance,  but  be  discharged  ac- 
cording  to  the  Ian. 

X.  C  Juilke,  Mr.  Attorney,  you  hava 
beard  muny  learned  Arguments;  il'you  be  pro- 
vided to  siisaerpnaeiitly,  we  will  hear  you  ; 
hut  if  you  will  have  a  longer  duy,  for  ihat  you 
are  not, provided  to  niigue,  you  miiy,  we  will 
give  It  you. 

JJiideridge,  If  yon  will,  you  may  tee  tbe 
precedents ;  it  may  be  you  have  not  seen  some 
(if  them,  and  we  aiu»i  see  them  too. 

Alt.  Gen.  (Heath.)  Mnj  it  pleuseyour  lord- 
ibip,tbe  Kciitlemen  that  be  of  ciiunsel  niih  the 
knights  at  the  bar,  they  have  said  much,  and 
apokan  very  long  for  tbeir  cliints,  and  to  good 
purpose  and  pertinently.  Tt  is  a  caase  that 
carrieth  with  it  a  great  deal  of  weight,  both 
towards  lbs  king  aud  his  suNeclz  nlso,  and  I 
am  not  so  hasly  lo  put  myBcltupon  tbe  main 
point' of  this  count,  when  it  is  almost  time  for 
your  lordship  to  rise. 

My  lord,  ttie  gentlemen  have  severally  spoken, 
nnd  given  and  insisted  upon  several  rensons, 
and  lliey  have  cited  many  preredents.  I  conld 
say  Mimelhing  of  them  at  this  present,  and  that 
some  of  them  have  been  niistuken  ;  and  tliere- 
fore  I  heteech  jour  lordsbip,  that  I  may  have 
time  to  answer,  that  I  may  not  wrong  itw  cause 
of  the  king's  part,  or  slight  ih^  cause  on  the 
subject's  part. 

But  that  which  I  desire  to  say  now  u,  that 
these  gentlemen  have  all  uf  tliero  gone  in  one 
form,  to  divide  tbe  cause  into  (wo  parts  ;  The 
lirst,  the  Form  of  the  return.  The  second,  the 
Matter  of  the  return.  For  the  furra,  methinks 
we  miiy  put  an  end  to  that  now,  if  your  lordship 
please,  (hat  we  may  have  no  return  (o  that 
another  day,  bur  I  may  apply  myself  unto  the 
matter  or  the  return. 

To  (he  Form  of  tbe  return  they  have  taken 
divers  exceptions,  but  they  especially  insisted 
upon  two  main  beads :  Fir^it,  'That  the  Return 
IS  not  good,  because  it  is  not  an  absolute 
return.  I  coniesstbe  ground  is  well  Inid,  nnd 
the  innj  or  is  good,  thnt  if  this  r«tum  be  not  po- 
sitive) y  the  return  of  the  Warden  of  tbe  Fleet 
himself,  but  tlie  relation  of  another,  it  is  no 
good  return,  therefore  I  Deed  spend  no  time  in 
that,  cbe  giwind  being  well  laid.  But  under 
your  lordship's  favour,  (he  minor  proposition  I 
deny,  we  difftr  only  in  tliat ;  for  I  say  that  this 
return  is  certain,  and  that  it  is  not  the  words  of 
any  man  dse,  but  tbe  express  words  o(  the 
wu-den  himself,  and  that  this  is  added  tr  ahin- 
danti  to  give  satisficlinn  to  the  court,  that  he 
had  order  lo  make  the  return:  therefore  I  de- 
sire your  lordship  to  cast  your  eye*  upon  the 
lubstonce  of  the  return,  and  diitinguish  it  into 
parts.  The  words  are,  '  Delentus  est  in  pri- 
*  sona  sub  custodin  men  per  specialemnndatinn 
'  doniini  regis,  mihi  ugmficatum  per  Warran- 
'  tuin  duorum  privuti  concilii  dicli  domini 
'  regis,  Ac.'  If  he  had  turned  these  words,  end 
said,  '  Detent'  est  prout  mibi  significai'  per 
'  Warraiituni  duornm  privati  concilii  per  spe- 
'  ciale  mandatum  domini  regis,'  then  it  might 


m  botb  of  hn 


SI]     ETAl^  TRIALS,  3  Cuxues  I  1027.— AMoniiqg*  m  S» 

be  taken  to  be  tbe  wonliof  llie  lordi  of  the 
council :  but  tbe  fint  nordi  bejng  poiitire, 
*  Detentua  esc  per  ipeciale  mBodatam  domini 
'  regis,'  tint  i»  sufficient,  and  the  rest  ii  lurplu- 
tue,  and  he.dotli  uot  lav,  '  praut  mlbi  siKni- 
'  £:at','  but  ■  oiihi  signmcat'  onl; ;'  nhich  is 
absiilute,  and  the  reiolulioii  thereof  cestath 
more  in  your  lordthip'i  eipoundinj;  of  tbe 
words,  tlian  in  putliiif^  an;  case  upon  tbeiu. 

Tbe  second  eicepnon  ii  taken  to  tbe  Fonn 
ef  the  return,  for  that  there  is  not  the  cause  of 
tbe  imprlsonmeat  r«tur<ked,  but  of  tbe  detain- 
ing alone.  Mj  lord,  I  la;  bo  more  at  present 
to  that,  but  this:  no  man  is  bonnd  to  sniwer 
more  than  that  which  is  the  content*  of  the 
vrit.  But  tbe  writ  it  tna;  be  to  knitir  speciallj 
tbe  raoM  of  the  detaining,  or  what  the  cause 
«f  tbe  caption  ii  onlv,  and  if  tbe  officer  make 
■nsnier  to  that  which  is  required  of  him  in  tbe 
writ,  it  is  sufficient. '  It  maj  be,  there  be  pre- 
cedents both  wBjs,  I  am  sure  tbere  me  for  de- 
tentions, and  [here  is  no  cause  whj  the 
ihall  shew  tbe  lime  of  bis  commitment :  but  if 
the  prisoner  shall  dutre  it,  your  lordship  ma^ 
grant  him  a  writ,  to  Ehew  the  cause  hot)'  *'' ' — 
ciptiaii  nnil  deienlisn  also. 

Tbirdlv,  Tbej  m?  that  this  return  ia 
tain,  and  tbkt  it  is  the  Warrant  of  the  lorda  of 
the  council,  and  not  of  ihe  king,  by  which  he 
n  committed.  For  that,  m;  lords,  I  say,  thai 
if  it  had  all  been  left  out,  and  be  had  onljt 
■wd,  <  Detentus  fuit  per  tpecisle  mandotufti 
'  domini  regis,'tt  had  been  auiicicnc :  but  when 
he  doth  more,  it  is  superBuous,  and  not  neces- 
sary, for  it  appeared  before  bj  nhom  he  was 
committed  \  and  when  he  reluma  the  warrant 
of  the  lords  of  the  council,  it  is  not  their  words 
that  commit  him  :  but  they  being  the  represeo- 
Utive  bodj  of  the  king,  they  do  express  what 
the  king's  command  is,  but  they  signifj  ttottnng 
of  thair  own ;  and  tbararoi^  I  dewre  your  lord- 
rilip  to  deliver  your  opTnion  in  that  point  oftliC 
return,  whether  it  be  positna  or  no. 

Tbis  cause,  as  it  greatly  coQC«nu  the  Sub- 
jects, so  it  much  concerns  (lie  kin^teo.  I  nm 
sorry  there  should  be  any  t>ecasion  to  bring 
these  'tbiup  in  question  ;  but  since  it  ii  now 
here,  I  hops  I  shall  gire  sausfaclioa  to  your 
lordship,  and  to  the  uarliea  too,  and  I  desire 
that  I  mav'baTe  till  Monday  Ibr  it, 

X.  C  Juttkt.  I  tliiak  it  is  not  best  for  us 
to  dcckra  our  epinions  by  piece-meals,  but 
«pon  all  the  case  together,  and  n  you  are  a 
Stranger  to  the  ratura,soare  w«;  and  there  be 
(oany  precedents  and  acts  of  parliaracut  not 
primed,  which  ««  must  nee. 

Dodtridgt,  This  is  the  greatest  cause  that 
•var  I  knew  in  tikis  court ;  our  jndiinientH  that 
we  pie  between  party  aud  party,  between  the 
king  and  tho  meanest  subject,  ought  to  be 
nuiturely  advised  on,,  far  so  are  the  entries 
of  ourjndunents,  '  ^od  ntatura  deliberatione 
'  habica,'  It  was  judged,  &c.  And  we  must  see 
tbe  precedents  mA  acts  of  parliament  tliat  we 


tutet  be  now  in  fi»rce,  and  tbe  geatloncn  be 
not  delivered  by  this  conrt>  how  shall  they  be 
delivered  i  Applv  yourself  to  shew  et  any  other 
way  to  deliver  t£em. 

boileridge.  Yea,  or  eJie  the;  shall  bat*  a 
penietual  imprisonmeit. 

jrn-  Curiam.  Monday  was  appointed  fbr 
tbe  Attorney's  argument,  and  in  the  interim 
the  Counsel  fbr  the  genllenMn  were  by  order 
appointed  to  attend  the  Judges  iritb  nU  the 
pteetdent*  and  unprinled  stMotet  wlwch  they 
itioned,  and  that  they  shoold  tetddie  Attoiw 


le  again,  answered 
they  did,  and  a  Hole  was  entered  tor  it. 

Monday,  30  IVorember,  169^.  Tertio  lit- 
chaelis,  38  Caroli  Aegis,  in  Banco  kegis. 

Sir  John  Corbet,  sir  Walter  Earl,  w  JtAti 
Ueveniogham,  sir  Edmund  Hampden,  kni^ts, 
were  bronght  to  the  bar. 

Altomtv-Otnerai  (Heath).  May  it  please 
your  iordsnipj  these  gentlemen,  sir  Jobe  Ce^■ 
bet,  ^  Walter  £ail,  sir  John  Hevetlngfaam, 
and  sir  Edmund  Hampden,  upon  their  motion 
to  this  Ceort  to  hive  their  Uabteas  Corpus, 
and  that  themselves,  and  thecanse  of  their  ds> 
taiiting  tlicm  in  their  several  prisons,  might  be 
brought  before  your  lord>hlp,  had  it  gr&nled  10 
tbem. — Hy  lori,  at  the  Grst  motion  of  it,  the 
kDowledoe  thereof  coming,  and  tint  Itaty  liad 
such  a  desire,  his  majesty  was  very  wiHmg  l» 
grant  unto  tbem,  at  to  nil  hit  snliiecti,  thit 
case  of  justice ;    and  thonah  it  be  a 


t  he  hath  been  so  gracious  aiMl  so  jtw^  as 

It  to  reliise  to  leave  die  essminatiaB  and  dt- 

rmination  thereof  (o  tbekMrsof  tUskii^dein. 

My  lord,  it  is  very  tnse  that  rhh  h  ■  very 

great  caase,  and  halb  raised  *  feat  eipceta- 

>•—    and  for  tbe  manner  of  it,  more  than  wm 

ssnryj    but,  my  lord,  I  am  afraid  thcae 

gentlemen  whi>m  it-concerns,  have  rather  a(l> 

vised  tlieir  counsel,  than  thar  counsel  tbem : 

but  I  shall  take  the  case  as  now  I  find  it,  and 

ns  the  gentlestien's  counsel,  on  the  other  side, 

have  led  me  the  way  to  it. — The  exceptions 

that  have  been  taken  by  the  counsel  on  tbe 

other  side,  to  the  retm-n  made  by  the  warden 

of  the  Fleet,  and  tbe  rest  of  the  guardians  of 


Qns,  have  been  tv 
bin's  memory,  w 
the  Keiurns,  ineyare  all  alike. 


uf  your  lordship's  memory,  we  wiU  read  0 


Then  the  Return  was  read  ftiT  sir  John  rfc- 
veningham,  by  Mr.  Keeling. 

Altom^Gentrtt.  Uayit  ^eftse  your  lord- 
ship, against  this  return  the  counsel  of  the  gen- 
tiemen  have  taken  some  exceptions,  and  bsve 
divided  their  ot^ections  Into  two  main  pointt, 
Ihe  one  tbe  Form,  tbe  other  the  Matter.  To 
the  Form  tbay  have  objected  (bur  several 
tilings:  1.  That  the  return  is  not  pasitivo,  buC 
referred  to  tbe  ligDilication  made  by  aitotheri 
Bi  the  lords  of  the  council.  9.  That  lb« 
keeper*  of  tbe  pristm*  bave  DM  tetnmed  the 
cause  oftfaeconmutmftit^  but  tliecanie<tftb«' 


Hall  one ;  but  \[  tbe  return  was  io,  tlial  vat 
Mt  much  iDBterial,  fur  (liea  it  were  bm  tetnpo- 
nrj,  aad  it  might  be  amenileil:  but,  my  turd, 
they  ha*e  miuakea  the  loinar  propDaition,  for 
thcj  hare  tuken  it  as  gnnted  ttinC  there  is 
imperfect  return  from  the  lords  of  the  coi 
□1.  Uy  lord,  1  shall  intreat  jou  to  CRSt  your 
eyes  apoD  ihe  return,  and  you  shall  find  the 
fint  words  positive  and  affinaalive :  the  wnrds 
aie,  '  Quod  dMentut  est  sub  cuatodia 
'  speciate  mandBtoni  domini  regis  :'  t 
wwds,  *  mihi  amaificacum,'  tbljow  after,  hut 
are  lut  part  of  the  aifinnation  made  before  it. 
But  if  ibe;  will  ha*e  it  as  they  seem  to  under' 
Kand  it,  then  they  most  turn  (he  words  thus  : 
'  Qood  tetificalum,'  or  '  sigiiilicatum  est  mihi 


tbeu  indeed  it  bad  ual  been  tbeir  own  proper 
leturn,  but  the  aignification  of  another,  the 
lords  of  tbe  coanut :  tbe  turning  of  the  sen- 
WDcc  will  K*dK  thii  ptHUt;  tbt  thing  itself 


speak  for  itself.  1  conceive  by  your  lord- 
ship's tavoui,  that  it  i)  plain  and  clear,  here  il 
a  positive  return,  that  the  deiaining  is  by  tbe 
comninndnipnt  of  tbe  king:  and  tlie  rest  oftbc 
return  is  mtlter  for  fiatislaction  to  myself  and 
tiie  Court,  than  otherwise  any  part  of  the  re- 

Tiie  second  Objection  hath  dcpeodaiice  upon 
this,  as  that  he  halh  returned  the  cause  of  tbe 
cause,  and  not'  ilie  cause  ilself,  wliereio,  under 
jour  lordship's  favour,  they  are  ullerly  mista- 
ken ;  Ibr  the  return  is  affirmative,  *  Ego  Jo- 
'  hauaes  Liloe  testi&cu,  &c/  1  know  that 
amon<(  the  logicinn)  there  are  two  causes,  there 


then 


S3]  STATETSIAIS,  SCoAALBt  I.  liil^ ^-brought  by  Sir  T.DaTnfl.mdothm.   [34 

due,  which  i«  not  good.  3.  That  the  return 
ii  inperfect,  for  that  it  sliews  only  the  cause  of 
ibe  detaining  in  prison,  and  not  Uie  cause  of 
the  firtt  commitnient.~-Aad  lastly.  That  the 
rttam  is  contradictory  ip  itself,  lor  [hat  in  the 
int^aitthereurthereiEacertifiealion  thol  the 
detaining  of  these  gentieioen  in  prison,  is  '  per 
'  ipeciate  maodatum  domini  regii ;'  and  when 
the  Warrant  of  the  lords  of  the  council  ii 
shewed,  it  appetrs  that  the  commilment  ia  1^ 
Ibe  command  of  tbe  king,  li^sDified  by  the  lords 
«f  Ibe' council :  and  by  your  lordsliips  facour,  I 
will  give  a  several  answer  to  every  of  these  se- 
leral  olijectioiis.  Aud  for  the  firat,  that  the 
lemm  is  not  positive  and  al&naatiie,  but  de- 
.  pendsupon  and  hath  relation  to  some  otlit^r, 
aad  therelbre  it  is  not  good  ;  I  do  agi'ee  Ihut 
iht  ^tmnd  is  true,  that  if  (he  return  be  not 
pouore,  it  is  not  good :  we  differ  only  in  the 
minar,  that  the  return  is  not  positive  and  af- 
inoatirc ;  for  I  agree  that  these  Book-cnsea, 
that  have  been  put,  are  good  law :  as  37  Ass. 
fl.  es,  that  if  tbe  abeHtt  return  that  be  had 
sent  to  tbe  bailiff  of  the  hundred,  end  be  gives 
bin  that  answer,  that  is  no  good  return ;  for 
the  sberiS'  ought  to  make  the  return  as  of  his 
owD  act,  wiiJiout  naming  of  the  baililT  of  the 
handled  iu  his  return :  tor  if  he  return,  ■  Quod 
'  aaodavi  balli>o  itinenmti  qui  babet  letorn' 
■  omnium  brevium  ei  eiecutionem  eorund'  per 
'caitam  domini  regis  qui  mihi  dedit  nullum 
'  Rsponium  ;'  thia  is  not  good,  if  he  were  not 
htiliffof  a  franchise  or  ligniory,  for  so  is  21 
B.T,fol.4. 

There  hath  been  cited  to  maintain  these  ob- 
jections, SO  Ed.  3.  The  record  I  have  perused, 
and  there  I  find  that  tbe  Bishop  said,  that  it  is 
iiMod  ■«  nrcAivu,  in  the  record,  &c,  that  be 
was  eioommunicaled  ;  hut  it  was  fouitd  to  be 
taorcAtvu,  &c  and  that  is  no  positive  retnrn 
thai  it  is  ao.  I  will  oppugn  wiiat  hath  been 
said  by  the  Counacl  on  the  other  side  ;  it  must 
be  granted  that  if  the  return  here  be  not  posi- 
tite,it  is  imperfect,andin5H.  7,38,iti>Eaid, 


rauisrithere  in 
the  hirdi  of  the  council,  for  that  is  cauta  cauia-' 
le  :  but  the  primary  and  original  cause,  which 
is  couta  causoni,  is  '  speciale  mandatutn  dorai- 
*  ni  rei;is ;'  the  other  i9  but  the  council's  signi- 
fication or  testiiication,  or  warrnnt  fbt  him  that 
made  iherelum. 

To  the  ihird  Objection,  that  the  return  is 
imperfect,  because  it  shews  only  the  cause  of 
the  drtainiDg  in  prisnn,  and  nnt  the  cause  of 
the  fim  commitment :  My  lord~,  for  that  I 
shall  not  insist  much  upon  it,  fur  ihal  I  did  sa^ 
tbe  last  day,  which  1  must  say  again,  it  is  sum- 
cient  for  an  oSicer  of  the  law  to  answer  that 
point  of  ihe  Writ  which  is  in  command. — Will 
yuur  lordship  please  to  hear  the  Writ  read.and 
then  to  see,  whether  the  wardens  of  the  prtsoo* 
hate  not  made  answer  to  to  much  as  was  in 


Th 


tail 

a  the  Writ  not  read  by  Mr.  Keeling. 


Attorney-General..  My  lord,  the  Writ  itself 

clears  the  ol  jection  ;  for  it  it  to  have  the  party 
mentioned  in  it,  and  the  cause  of  his  detention, 
returned  into  this  court ;  and  thererora  rhe  an- 
swer to  that  is  sufficient.  Only,  my  brd,  tbe 
warden  oF  the  Fleet,  and  tbe  rest  of  the  keepers 
of  the  prisons,  had  dealt  prudently  in ,  their 
proceedings,  if  they  had  only  !,Bid,  that  thrj 
were  detained  '  per  speciale  mandatum  domioi 
'  regis,'  and  it  had  been  good,  and  they  might 
have  omitted  the  rest:  but  because,  if  they 
sliould  make  a  false  return,  they  were  hable  to 
the  actions  of  Ihe  party,  they  did  discreetly  to 
have  the  certification  of  tbe  lords  of  tbe  coun- 
cil, in  suspicion  that  if  this  return  was  nut  irue, 
tliey  were  liable  to  the  actions  of  thew  gentle- 
men.— In  9  H.  a,  40,  44,  it  is  aaid.  That  wliat- 
soever  the  cause  be  that  i>  returned,  it  must 
be  accepted  by  the  court ;  they  iitust  not 
doubt  uf  the  truth  of  th*  Return,  an'l  the  of- 
ficer that  shall  return  it  is  liable  to  an  action 
if  the  return  i«  false ;  and  therefore  the  guar- 
dians tif  the  prisimsdid  wisely,  brcnuse  tliey 
knew  this  was  a  cuse  of  great  ei|>ectHti<)n,  to 
shew  from  whom  they  had  their  Marram,  and 
so  to  see  whether  the  caiiae  he  true  or  not. 

The  last  Objection  to  the  Return  is,  th^jt  it 
is  contntdictury  in  iuelf,  ns  that  the  firtt  part 
of  it  is,  that  tht^  are  detained  in  prison  '  per 
'  speciale  mandatum  domini  regis ;'  bnl  in  thia 
relation  of  il,  it  thews  that  tbey  are  detained 


85]     STATE  TRIALS,  3  Crarui  \  1  (iQ7.—i'roixedngt  on  the  Haheat  Corpta,     £80 


by  tlie  comnuind  of  the  lords  oF  the  rouacil ; 

fur  the  words  of  their  WarrHiit  ace,  to  require 

S3U  stiil  to  detain  him,  &c.^Hur,  my  lord,  if 
»y  will  b^  ptcused  to  see  tlie  whule  Warrant 


in  ihai  wumant,  but  they  say  ihiit  you  are  lo 
take  notice  of  it,  as  ilie  woids  and  commuid 

of  tliB  kii.g ;  for,  iiij'  lord,  tlie  lurda  of  tl>e  coun- 
cil are  tlie  Krvuili  to  the  kin;,  they  signify  hli 
majesty's  pleasure  to  your  iurdship,  and  ihey 
Bay  it  is  Iiis  iiinjeity's  pleasure  <fou  tliould 
know  [hilt  the  firat  comniitincnt,  and  this  pre- 
sent detaining  hini  in  prison,  are  byiiii  mi>jc»- 
ty'9  epecml  conimanrinient. — And  tliit,  my 
lord,  is  all  lliat  I  mil  say  for  the  sutSciency  ai 
the  Form  of  the  return,  to  prove  that  it  is  sidfi- 


Toucbiiig  the  matter  of  the  return,  the  main 

taint  thereof,  it  is  but  a  single  question,  and  1 
ape,  my  lord,  of  no  greiit  difficulty  ;  and  that 
b,  whether  tliey  be  replevissble,  or  not  reple- 
visahle  ?  ll  appean  thnt  the  commitment  is 
not  i'l  a  \es.a\  and  ordinary  way,  but  llint  it  is 
'_  per  sptciale  manilatum  domini  regis  ;'  which 
implies,  not  only  the  fact  done,  but  so  extra- 
ordinarily done,  that  it  is  notorious  to  be  his 
majeslf's  iiniacdiate  act  and  will  it  should  be 
w> ;  wfjelber  in  this  case  they  should  be  baila- 
ble or  nut  in  this  court,  nliieli  I  acknowledge 
to  be  the  highejt  court  of  judicature  for  such  a 
case  as  is  in  question. 

The  counsel  on  the  other  side  desire,  that 
they  may  be  bailed,  HTid  have  concluded  thnt 
they  may  not  l>e  remanded ;  their  grounds  of 
argument,  though  they  were  many  timt  <lid 
ipeak,  f  have  m  my  Collectiuii  divided  into 

The  firat  was.  Reasons  that  ibey  must  be  so. 
arising  fnm  the  inconveniences  that  would  Ikll 
ti>  the  auhjecis,  if  it  should  noi  be  so  in  the 
mam  pointsofilieir  liberty.  The  second  was 
they  ;lie<red  divers  uuihorities  out  of  their 
law-bnnks,  which  they  endeavoured  to  apply. 
Tiiethlrd  «ai,  Ti.e  Petition  of  the  Commons 
ansueied  by  several  tings  in  parliament.  The 
fourtb  was.  Acts  of  PDrUament  in  print.  The 
la-st  wiis.  Precedents  of  divers  limes,  which 
they  alle<t):cd  t«  prove,  that  men  cummiited  by 
the  kind's  commandment,  and  by  the  com- 
in''ndment  of  ilie  lords  of  the  privy-council, 
(which  I  conceive  tu  he  all  one,  for  the  body 
of  the  privy-cniincil  represent-  the  king  himself) 
that  upon  such  commitiueut  in  such  csubes 
men  bad  been  bailed. 

In  (be  CLiurse  of  my  aipimenls  I  will  follow 
their  mttiiod,  lirit,  to  answer  their  Reawnt, 
and  rheo  those  Books  wliirh  they  have  cited, 
which  1  conceive  to  be  pertinent  to  this  ques- 
tion, niid  t)icti  the  Petition  and  Ansver  made 
is  parliament,  and  ihen  tbeir  Acts  of  Parlia- 
ment, ncvt  llii'i.  Precedents ;  and  tastlf,  I  will 
give  lour  lord&liip  »'<me  reasons  of  my  own, 
which  I  hnne  shall  suflicieatly  satisfy  ynur  iord- 
Bhip  I'l.l  all  otlii'ra,  but  the  parties  tlirmsrUes, 
fori  tT;rept  them. 

My  lord,  the  threat  aiid  mighty  BeasoD  tiiu 


they  inniated  upon,  was  the  iiicunvenietKM  that 
might  come  lo  the  subjects  in  their  liberties,  if 
tiiis  returo-should  be  godd;  and  this  reason 
they  inferred  out  of  records  and  books  of  the 
coDimoB  law,  which  gives  the  liberty  of  the 


subject,  but  yet  it  is  their  inberi-     , 
Utnee  wcundum  legem  terra. 

My  lords,  they  put  many  Cases  likewise  to 
enforce  it,  1  aud  3  Eliz.  Dyer,  To.  IT^,  (bat  the 
continuance  of  a  Capias  shall  he  from  term  to 
lerm,  wi^ut  a  term  betwiit,  because  olli«r< 
wise  tbc  party  defendant  may  be  kept  too  long 
in  prison  ;  and  38  Asa.  pi.  93,  Broke  tit.  Jn- 
prisonment  100,  that  imprisonment  is  but  to 
detain  the  party  till  he  have  made  fine  to  tbe 
kini,  and  therefore .  the  king  cannot  justly  de- 
tain hiiu  in  prison  after  the  fine  tendered ;  and 
IG  H.  6,  monsirana  da  faict  183,  if  the  king 
command  roe  to  arrest  a  man,  and  therrapoa 
I  do  arrest  him,  he  may  have  an  at^on  of  &ls« 
iniprisonmeat,  or  of  trespass  against  me,  thongli 
it  be  done  in  the  king's  presence :  and  1  U.  7. 
4,  tbe  discourse  afUussey,  where  he  saith,  that 
sir  John  Markbatn  delivered  unto  king  Edward 
the  4tb,  that  b«  ahould  not  arrest  upon  treaaon 
or  felony  any  of  his  subjects,  becaose  he  could 
not  Krong  hit  subjects  by  aucb  arrest,  for  tbey 
could  not  have  remedy  against  hiM. 

These,  ray  lord,  are  tlie  Causes  tliat  they  in* 
sisted  upon  for  this  purpose.  To  the  two  £nt, 
I  shall  give  but  one  answer;  which  is.  That  t)l« 
nsinuntin  these  two  cases,  and  mosi  of  the 
other  cases  before  cited,  appears  to  be  is  the 
ordinary  coutse  of  judicaCure  fit  for  Westtnia. 
Gter-hall,  and  not  for  tbe  king's  cooDcil-tatfle. 
A  writ  of  Capias  was  tt>e  firM  orixinal  of  it, 
and  therefurc  not  to  be  applied  to  the  c«as«  of 

And  for  the  other  two  cases,  the  law  pre- 
tumeth  that  the  active  part  ul-  ihew  is  not  to 
proper  for  tjie  mB)esty  of  a  king,  whoever  doth 
these  tilings  by  his  subordinate  officers;  but 
that  the  subject  should  not  ha  commicwd  ,by 
the  king,  was  never  heard  uf,  for  Che  kioE  mttj 
couimit  any  man  at  bis  pleasure;  bat  that  is 
net  our  case ;  hut  whether  when  the  king  hath 
committed  one,  he  must  render  ■  cause  oflhU 
commitment,  that  it  may  appear  wbetber  the 
pally  be  bailablcor  not,  or  else  the  party  niwt 
hc'delii-ered. 

The  book  9  E.  3,  fol.  16,  pi.  30,  ct(«d  of* 
Cessaiil,  I  lie  king  having  by  proclainatjon  com- 
manded, that  in  the  county  of  NortkumberUnd 
no  Cessavit  should  be  brought,  Ac.  during  tbe 
war  ;  the  tenant  pleaded  tins  command,  and  it 
was  denii  d  him,  and  lie,  notwithstsndtog  thet, 
was  comiminded  to  plead  ;  hut  ibe  reason 
t!  eteuf  was,  because  'be  commandment  thereof 
was  given  by  E.  a,  who  being  dead,  the  com- 
mnndmeiit  was  determined. 

The  Book  of  Edw'.  3,  4  ful.  16,  is  indeed, 
where  the  commandment  wasfirenbji  tbe  same 
king,  and  that  was  likewise  denied  him  ;  fw 
the  king  cannot  command  youi  lordship,  or  any 
other  court  of  jtiuice,  to  pftKwd  <' 


ST]  STATB  TRIALS,  3  Cbablbs  I.  J6S7.^irtiiglubySirT.Z>anitt,mdo(hat.   [35 

My  lord,  the  main  fundamental  grounds  of 
nrgumrnt  upon  thia  case  begins  wit)i  Ma^^na 
Charta,  Trom  thence  have  grown  st<i(utei  Tor 
exptaniicmn  tbereot',  eeveml  I'etiiioiis  of'par' 
liainem,  and  Precedcriis  for  eipeditHi"  ;  I  itiait 
giTE  BOswers  to  them  all. 

For  Mngna  Cbarta,  in  the  39tb  cliapter,  hntn 
these  norils ;  '  No  freeman  ^fantl  be  tnkeii  or 
'  imprisoned,  or  disseised,  of  his  freehold  libera 
'  tie!,  nor  free  customs,  Bor  be  outlawed,  or 
'  exiled,  nor  any  other  way  destroyed,  nor  wa 
'  irill  not  pass  upon  him  nor  condemn  biin,  but 
'  bj  lawful  judgment  of  hia  'peers,  ur  by  the 
'  law  of  the  realm.' — Mj  lord,  tins  statute  batb 
been  many  times  conhnned;  the  lord  Coke 
Dnmhered  up  the  number  to  he'aboui  iwentj; 
and  we  are  to  conclude  on  this,  it  is  the  foumui- 
tion  of  our  Liberties. 

No  freeman  can  be  imprisoned  but  bj 
'  leK^te  judicium  parium  sugrum,But  per  legem 
'  terrz,'  But  will  they  have  it  understood  that 
no  man  should  be  conimitted,  but  flrst  be  shall 
be  indicted  or  presenwd?  I  ihink  thnt  no 
learned  man  will  ofFer  that;  fur  certiunly  there 
is  no  justice  of  peace  in  a  county,  lior  consta- 
ble within  a  (own,  but  he  doth  (Otherwise,  and 
might  commit  before  an  Indictment  can  be 
drawn  or  a  presentment  can  be  made:  what 
then  is  mennt  by  these  words,  '  Per  Irgeia 
'  teme?'  If  any  mm  ibatl  say,  thia  doth  not 
warrant  that  the  king  rnay  for  reasons  moving 
him  commit  a  man,  and  not  be  answerable  for 
it,  neither  te  the  party,  nor  (under  yojr  lord- 
ship's favour)  unto  any  court  of  justice,  but  to 
tlie  High  Court  of  Heaven ;  I  du  deny  it,  and 
will  prove  it  by  ourStatulea. 

My  lord,  it  wa»  Urged  by  the  counsel  on  the 
other  side,  that  our  printed  Magna  Churta, 
which  saitb  '  nee  super  eum  mittimus,'  is  mis- 
lakcn  ;  and  tbat  in  divets  Manuscripts  it  is  ex- 
pressly set  down  to  be, '  nee  euin  in  carcereis 
'  mittimus.'  1  cannot  judge  of  the  Manu- 
scripts that  i  have  not'  seen ;  hut,  my  lord,  I 
have  one  here  bj  me,  which  mas  written  nianj 
yenrs  ai;o,  and  the  words  m  print  are  word  for 
word  a«  that  which  is  here  written. 

Then  they  say,  that  Mjlihew  Paris  sets  it 
du»n  so  in  his  Historv  :  Aly  ionJ,  we  do  uoC 
govern  our^eives  by  Chronicle,  but  to  answer. 
that  of  Matthew  Paris,  he  reports  a  thing  done 
in  king  John's  lime,  but  it  was  then  but  thought 
on,  and  it  wus  enacted  in  the  time  of  Henry  3 ; 
■lid  ibere  be  many  things  said  to  be'  done  in 
Matthew  Paris  which  were  not,  and  tiuiny 
things  omitted  hy  him  which  were  done.  Thi* 
Charter  was  bat  in  election  in  the  time  of  king. 
John,  and  then  it  might  be, '  nee  eum  in  car- 
'  cf-rem  mittnnns;'  but  It  was  not  enacted  till 
the  time  of  Henry  3,  and  then  that  was  omitted, 
and  ihe  Charter  granted  as  now  we  have  it. — 
But  if  thev  do  sea  no  more  than  1  in  tkii 
Clause,  I  know  not  why  we  shnuld  coniand. 
about  the>«  wnrHs,  seeing  the  tirsi  p;irt  of  thia 
Statute  saith,  ■  Nemo  impnMne'ur.'  why  ihea 
may  not  I  suy  as  »ell, '  nee  eum  in  carcereui 
'  mittiniuif  I  iCf  nu  differ;>nce  in  ilit  wntili, 
mj  lord,  I  (ball  not  iutin  auj 


;o  the  taws  of  this  kingdom ; 
for  it  is  put  of  your  lordship's  oath,  lo  judge 
tcctNding  to  the  law  of  tbe  kingdom.  But,  my 
k>rd,  there  is  a  great  difference  between  those 
legal  csmmands,  aed  that  iJnoluta  potetlt  that 
■  sovpTv^n  hath,  by  which  a  king  commands  i 
bat  when  I  call  it  siioltita  poteilai,  I  do  not 
■nn  tbat  it  is  such  a  power  as  that  a  king  may 
do  >hBt  he  pleaaeth,  for  he  bath  rules  to  govern 
hiaiselfby,  as  well  a)  your  lordships,  whi>  are 
mbonliDBte  judges  nnoer  him.  The  difference 
B,  ibe  king  is  the  bend  of  tiK  mme  fountain  of 
JtEUce,  wLich  your  lordship  administers  to  all 
hii  Mhjects;  all  justice  is  derived  from  him, 
and  what  he  doth,  he  doth  nut  as  a  private  per- 
son, but  as  the  liead  of  the  common  wealth,  as 
jutitiarmt  rtgni,  yea,  the  very  essence  of 
Janice  nndcr  God  upon  earth  is  in  him;  and 
ihiil]  Dof  we  generally,  not  as  subjects  only,  but 
as  Iswjers,  who  govern  ihem-ielvei  by  tbe  roles 
«f  the  taw,  submit  tO  his  commands,  bat  make 
inquiries  whether  they  be  lawfiil,  and  say  tbat 
tbe  king  doth  not  this  or  that  in  cmvrse  ofjus- 
tioe? 

If  your  lordship  sitting  here  shall  proceed  ao- 
nnding  to  justice,  wtm  calleth  your  actions  in 
(pestion,  except  there  are  some  errors  in  the 
proceeding ;  nnd  then  yon  are  subject  to  a  wrjt 
of  error. — Bat  who  slutl  call  in  question  the 
actions  or  the  juttice  of  the  kinf;,  who  is  not  to 
five  say  account  for  them  f  as  in  this  our  case, 
that  be  commits  a  nil^ecl',  and  shews  no  cause 

Tbe  king  comniito  and  often  shews  no  cause, 
for  it  is  sometimes  generally,  '  Per  speciale 
'  mandatum  dumini  regis,'  sometinies  '  Pro 
'  cenis  causis  ipiuin  dominiim  regem  moventi- 
'  bci;'  but  if  the  king  do  this,  shall  it  not  be 
tvidi  It  is  all  one  when  the  commitmeiii  is 
'  Per  speciale  mandatum  domini  regis,'  and 
when  it  is  ■  Pro  cenis  causis  ipsum  domiuum 
're^piD  mavcrttihuB  ;'  and  it  is  tbe  same  if  the 
CDminiin^eiit  be  '  Certii  de  causis  ipsum  domi- 
■  Bum  regem  tangentihus.' 

And,  my  lord,  unless  the  Return  to  you  d<)th 
open  tbe  secreU  of  the  commnmeflt,  yuur  lord- 
diip  cannot  judge  whether  the  party  ought  by 
liw  to  be  remanded,  or  delivered ;  and  there- 
tire  irihe  king  allow  and  give  warrant  to  those 
ttoi  make  the  remm,  tbat  they  shall  ei press  the 
cause  of  the  commitment,  as  many  times  he 
'otb,  eitber  for  suspicion  of  folony,  or  making 
naMT,or  the  like;  we  shall  shew  your  lord- 
dip  oiat  m  these  causes  this  court  in  itsjaris- 
didion  were  praper  to  try  thttse  criminnt  causes, 
ud  your  lordship  doth  proceed  in  them  al- 
thua|b  the  commitment  be  '  per  specinle  man- 
I  datan  domini  regis,'  which  hkth  not  a  secret 
la  il  in  these  causes,  for  with  the  warrant  he 
Nndtth  yonr  lordship  the  CBa«e  of  the  commit- 
tisg;  and  when  these  warrants  are  made  and 
maght  into  this  comrt,  your  lordship  may  pro- 
Mcd:  bol  if  there  be  no  cause  ripresseil,  this 
<Mit  hath  nTwtiys  used  to  ramand  them  ;  for 
it  bath  been  used,  and  it  is  lo  be  intended  a 
miter  of  state,  and  that  it  is  not  ripe  nor 
■bdy  for  it  to  f/fvat. 


STATETRIALS,  3  ChablmL  l&^.—I'nxMUiigtmtrxjrabeatCorpa.     {*» 


loneer  upob  tlie  lileral  expotilion  of  the  words 
of  Miv{Q!i  Clinrta,  bui  I  oill  resort  to  ihe  rpsi 
ofil,  which  b  etprestiii  the  subsequeot  statute 

The  Cunsel  on  ibe  otlirr  side  snid,  that  die 
ItOlUte  of  38  E.  3,  C.  3.  exprenelh  and  giveth 
life  to  this  (Jharter ;  I  sliall  desire  to  biive  that 
Statute  reail. 

Krelinx,  Clerk.     Item.  '  Wbrre«*  it  ii  con- 

•  tujneii  in  the  Grent  Clmrier,'  &c.  (Vide  all 
these  Staiules  in  LitUetou's  Argumeut  in  Par- 

Allurneg  Gentral.  Mj  lord,  ihe  reulin);  of 
this  iiatute  will  i>i*e  aO'-'iir  to  it ;  for  it  ia  ap- 
parent li^  the  nurds thereiff,  nQ.iesliallbetnlieu 
by  Feiiii.'ii,  &«.  and  that  the  court  be  eitend- 
M  10  the  fir^t  iirre»i,  but  tl^jr  are  ta  be  uuder- 
»too(l  that  noii«  shiiU  be  condemned,  but  he 
ihull  he  brougiit  lo  s'l^wer,  und  be  tcied.  And 
if  it  be  eipiunded  ntlierHisc,  it  «i!l  b^  contrarj 
to  that  practice  which  was  tiiea  in  use. —  But  it 
is  uiietly  forbiildeii  hj  thi'  Siatuie,  that  any 
man  should  be  cundeiuned  upon  iupiirstiniis  or 
pctitiOK^  wade  to  ths  king  nr  cnuiicil,  without 
due  trial  by  law. — The  ncii  Sialutc-tliuy  cited 
trns  S5  E.  9.  cap.  4.  My  lord,  1  desire  ibat 
that  m.ij  be  read. 

AVrfiop,  Clerk.  luni,  'That  no  man,  of 
'  what  estate  or  cundiliun  soever  he  lie,  shall 
'  be  put  out  of  lauii  iir  teneiuent,  nor  taken, 
'  nor  imprisoned,  nor  disinherited,  nor  pot  to 

*  death,  without  being  titoiiglit  to  aiisner  by 
'  due  process  of  law.' 
'   Altomry  General.     Mj  lord,  this  Stati 
intended  to  he  r  linal  proieculion :  for  if  a 
■ball  be  iinprisoued  without  due  proceM,  and 
never  be  brought  to  onsiter,  tliat  is  unju>l,  and 
forhiJdeii  by  Uiis  st^itute;  but  when  a  man  is 
taken  in  causes  ihut  are  unkiiuwn  to  us,  (who 
walk  below  stairs^  we  are  not  privy  to  ilie  c' 
cunistancet  wbicn  may  cause  the  trial  to 
delayed  ;  and  perndteniure  it  is  not  time 
brin;;  tlie  matter  to  tiiid,  because  it  is  nut  i 
come  lo  maturity,  end  tberifore  tlii«  is  i 
within  the  meaning  of  the  statute. — Another 
Statute  thut  they  mention  is  in  tli«  same 
sud  it  is  page  9.  ch.  9.    1  desire  it  may  be 

Kreling,  Clerk,  Item,  '  Because  the  Peo- 
'  pie  9f  tie  realm,  &c.'  (Vide  Littleton's  Ar- 
gument poifca.^ 

Atioraev  General.  My  lord,  it  is  »eiy  clear 
itBtute  had  no  Dutiin.r  of  thought  M 
n  question  ;  but  whereas  >hcriSs  did 
.procure  commissions  to  he  awarded  to  theni- 
sclves  tor  their  privBte  gaiu,  to  the  prgudice  of 
tlie  subject,  tlie  siatate  condrraneth  ilu'sr  com- 
mission!', but  it  maketh  notliiug  to  this  question 
which  we  have  now  in  hand.  The  neil  Sta- 
tute nhlcli  they  tiled,  wns  37  Ed.  3,  cap.  18. 
I  beseech  it  miiy  be  read. 

Ketlin^,  Clerk.  '  Item,  Thoueh  it  be  cou- 
■  laiued  iii  the  Great  Chaner/  Sic.  (Vide  as 
■foresaid.) 

Auorniy.Gentral.  My  lord,  this  Statute 
seems  to  lie  a  c»mmentiiry  and  lij^ht  to  the 
utherStatut«s,  the  scope  nbcceof  is  against  pi' 


that  this 


e  committed 


stiggeitions  mode  to  the  kiog  or  bi*  CMin- 
cil,  and  itot  in  a  legal  way,  nod  thetetore  >t 

idemns  theu;  and  tliia  is  more  liilly  ex- 
pressed in  the  Statute  of  38  Edw.  S,  tap.  g. 
whicli  they  like  wise,  mentioned  ;  By  which  sta- 
tute direction  is  given  nhat  security,  tliose  per- 
sons which  make  such  suggestions  are  to  |ei>e, 
that  they  should  prosecute  tlieir  suggeslionk, 
and  what  punisliment  they  shall  undergo,  if 
their  suggestions  be  found  false. 

Ketliug,  Clerk.  ■  Item,  As  to  the  artidt 
'  made  at  the  last  parliament,' &c.  (VJdeasbe- 
fore  said . ) 

Allomry  Gfticnl.  My  lord,  this  and  the 
last  Statute  srem  to  conduce  botli  to  one  pui^ 
pose,  that  ibev  that  in  tlieir  accusations  wcat 
not  in  a  le^l  way  to  biioft  the  party  to  his  an- 
swer, it  <riui  directed  by  this  st^itute,  that  they 
sl^ould  go  a  legal  wny.— The  last  act  of  parlia- 
meoc  in  prim,  the  caunse!  on  the  other  side 
produced,  was  tlie  Statute  of  1  U.  2,  cap.  tS. 
which  I  desire  niay  be  read. 

Kaling,  Clerk.      '  Item,    Whereas    di.i 
'  people  at  the  suit  of  parties  ■ 
'  the  Fleet,'  &c.  (Vide  as  before,) 

Altonry  General.  My  bid,  it  appeareth 
that  the  scope  of  this  Statttte  is  against  the 
Warrieus  of  the  Fleet,  for  some  iniscBrnTiges  to 
them;  but  tliere  ii  one  thini  in  this  Swtuie 
which  I  shall  desire  your  lordship  to  observe; 
and  that  is,  for  iliose  nuHleimcanoii  he  nhall 
forfeit  his  olfice,  ckcetit  it  he  by  writ  from  the 

new  doctrine  in  tliose  limes,  that  the  kiii; 
miKht  then  give  such  commandment  lor  cuiii- 
mitiing,  Ilie  scope  of  (his  Statute  had  two 
hands:  1.  Thatilie  warden  should  forfeithis 
office ;  and,  2.  That  he  sluuld  recompen**  ^^ 

In  the  4tli  and  5tb  of  Phil,  et  Mar.  Dyer 
16a.  it  was  resolved.  That  if  the  Warden  shJl 
deliver  ii  (nan  out  of  prison  without  command, 
he  forftiteth  bis  office,  and  damage  unto  the 
party  ;  but  if  he  have  the  command  of  the 
king,  thai  shall  eicuaethe  forfeiture  of  his  ol- 
fice :  but  he  must  bring  the  party  hiilier,and 
here  Ihtse  gentlemen  are  now,  for  that  com- 
mandment of  the  king  is  no  exception  for  him 
not  to  observe.— If  he  receives  a  writ  from  ihii 
court,  to  shew  the  court  from  whence  he  re- 
ceives his  warrant,  it  may  excose  the  fotleiture 
of  his  ulh'ce,  hut  notwithstanding  he  is  subject 
to  the  acti"n  of  the  party. 

But  !  desire  yeur  luidship  to  observe  that 
part  of  the  Statute,  which  the  other  party  would 
nnt  make  use  of,  whicj  is,  that  tlie  kiuR  may 
command  Ly  writ  or  utheiwise  ;  these  were  all 
the  printed  stalales  cited  by  the  counsel  on  the 
other  nde.  But  because  I  would  not  misinter- 
pret these  statutes,  1  thought  it  equiil  to.  desire 
your  lordstiip  that  they  might  be  read.  Be- 
sides the  primed  Statutes,  they  meniiuned  Pe- 
titions by  tlie  commons,  and  the  Answer*  lo 
them  of  several  kiiigsin  parliament.  The  first 
is.  Kot.  pi.  6  VJ.  3,  narnero  1  et  90  i  besides 
these  two,  there  is  one  other  of  S8  Ed.  3,  n.  IS- 

My  lord,  of  tbese  three  Petitions  and  tlieir 


41]  STATE  TRIALS,  SChauvsL  lG27.-*r(K^  kf  Sir  T.  Dmd.  aid  dim.    [« 


Ammo*,  tbc  two  fintwece  meniKHkcd  bj  the 
omibkI  od  ib«  otber  side ;  Bod  tlmt  in  38  Ed. 
3,  SS,  1  haTS  piDdaced,  «11  of  tiiaa  CTcn  to  one 
pvrpuse.  The  commons  tim  pnilioned  th« 
LiibilMall  the'StatDlei  ii»de  in  eipotiiioa 
dT  Migna  Charta,  aSd  ot  the  forest,  ub;  b« 
kept  mud  otnerved:  the  kio^  makes  Amviei, 
ibu  it  iball  be  dooe.  And  lo  one  of  the  An- 
•wen  it  ivsaid.  If  anj  mnn  be  grieved  he  miy 
nmplufl.  But  wLm  it  all  this  to  the  pobt  in 
qomioiip  Could  there  be  anj other  Auiwertu 
(ire  lite  to  tbese  request^  i  The  king  he  ii  p«- 
[HiuDcd  that  some  are  injured  ;  he  answcn, 
ntL  if  ibej  compiaiii,  the;  aliidt  be  relieved. 

And  Don,  my  lord,  we  are  where  we  woe, 
'  to  £ud  out  the  true  meaning  of  Magna  Charta, 
for  there  is  [he  foundatioa  of  our  case  ;  all  tliij 
Ehic  Lath  beeo  said  concerneth  other  things, 
and  ii  nothing  lo  the  thing  in  quettioo.  There 
iiDsta  nnfd  either  of  the  cammioneot  of  the 
king,  ur  ciKmnandaienC  of  the  council,  in  all 
the  Statutes  and  Ilecords. 

And  now,  aiy  lord,  I  am  at  an  end  of  those 
Stituies,  and  come  to  thnt  thai  iviis  aUedced 
ud  mentioned  to  be  in  3  D,  6,  40.  and  if  I 
cwild  have  fuund  it,  I  would  have  brought  it, 
but  1  could  not  fiiid  it;  there(i>re  if  they  have 
it,  Id«sire  that  the;  will  sbtw  it,  but  I  tliiiik 
tljc;  hate  it  not,  and  therefore  I  will  Jet  thnt  go. 

iij  lord,  I  come  to  that  which  I  insisted 
nppn,  the. question  aa  it  was  at  lirsl,  not  whe- 
tkn  iheting  or  the  lords  of  the  council  can 
cDBwut  a  nan,  and  shew  no  chum  wherefiire 
ihej  do  commit  him ;  hut  whether  the  ordinary 
coDcbof  jintice  hnve  power  to  bdil  him  or  no; 
far  that  I  will  inwit  upon  ibe  Statute  of  Westm. 
Luhicb  i  desire  yoiu  lordibip  may  le  rend, 
ssd  then  I  will  apply,  (vide  We:,tni.  priino.) — 
Uy  lord,  this  Statute,  if  I  misunderstand  it  nnt, 
iltfuU  expression  to  the  purpose  of  AInipia 
Ghana;  the  scope  whereof  ii  to  direct  u»  in 
what  cases  men  imprisoned  were  tn  be  bailed. 
It  was  especially  for  direction  to  tbe  sheriffi 
ud  others  ;  hut  lo  sny  couKi  of  justice  are 
ndoded  from  this  statute,  1  conceive  it  cannot 
U.  It  recites.  That  whereas  heretofore  it  wai 
not  reiolted  in  what  cates  men  were  replevis- 
abk,  and  in  what  case*  not,  but  Only  in  thene 
four  cues;  fur  the  death  ofaman,  or  by  the 
cuounandutent  of  the  king,  or  of  liis  justices, 
aroTihe  lljrest.— My  lord,  I  say  ihat  this  sta- 
tateKprasseth  not  th«  law  was  made  by  thii 
Itilute,  thai  ill  these  cases  mim  were  not  re- 
plniMhle;  bul  it  cxpmMih  that  the  law  was 
dear  in  tliese  cases ;  in  these  four  cases  it  was 
deady  resolved  before. 

Ifi«y  you,  my  lord,  obterve  iIk  time  of  the 
onkiBgof  this:i'latute;  tiat  of  Magna  Chnrta 
wu  made  in  tl.e  time  of  Henry  3,  and  thii  uf 
Weiiminster  in  the  time  of  Edw.  1,  so  ibat  it 
wasniade  in  the  time  of  the  same. — And,  my 
k>rd,  if  ibey  had  unilersiond  the  atntute  of 
Magna  Chwta  in  another  lenw,  would  they 
Bot  haie  expressed  it  so  in  this  statute  1  Wu 
it  not  fitter  for  tbeni  than  f^>r  us,  they  being 
aurcr  th$  fint  making  of  Mas"*  Charta  than 
m  arc  i  But  certjuiilj  lU  bMtitte  of  Magna 


Charts  was  expomded  at  (be  time,  as  I  Jm*« 
shewed  bel'or*;  if  not,  without  all  doubt  at  tlw 
time  of  making  of  Westm.  prima. 

The  pariiament  would  not  iiave  been  so 
careful  to  provide  for  things  of  lesser  monent 
and  omit  this  of  so  great  consequence,  il  thera 
bad  been  any  queauon  of  it.  lo  all  times  and 
agts.  Magna  (Jhaiia  hath  been  coofinned,  bul 
tliey  shew  not  any  one  law  tliat  doth  except 
against  thi)  positive  Uw  of  Westmtntter  the 
tirst,  or  uny  acts  of  parliament ;  nay  ^ore,  ia 
any  pHntod  Books,  that  in  Uiis  case  men  should 
be  replerisable. 

My  lord,  if  you  know  nothing  printed  or  no- 
printed,  if  any  will  deure  lo  alter  a  course  that' 
always  bsih  been  held,  you  will  se«k  for  Pre- 
cedents, for  the  constant  use  and  course  it  tha 
best  exposition  of  the  law;  it  is  not  enon^ 
for  me  to  say.  This  it  is,  uolesa  I  make  it  good. 

First  then,  I  say,  they  on  the  other  tide 
cannot  cite  One  Bouk,  Statute,  Or  ottier  thing, 
to  prove,  that  they  that  haie  been  committed 
'  per  specinle  mandunim  domini  regis,'  are 
bailuLle.  But,  my  lord,  I  fiud  same  lo  tha 
contrary,  that  they  ore  Dot  bailable,  and  1  will 
cite  some  uf  tliem,  and  read  uf  ollieis;  for  I 
would  not  in  a  case  of  that  expeciaiiou,  that  it 
should  he  thought  that  any  thii%  siiould  be 
misinterpreted. 

In  the  33  Hen.  6,  f  33,  Robert  Poyoing'* 
Case,  he  was  committed  '  pro  ditertis  cnu»i* 
regedl  tangent" ;'  this  altera 


:,  for  i 


ae,  f'lr 


the  Warrant  '  dt 
is  no  question  upon  this :  but,  my  lord,  1  know 
lliis  is  not  the  point  in  onestiuo. 

'Ihe  next  thing  1  shall  shew  unto  youT  lord* 
ship,  b  Piuch.  31  Edw.  1,  Hot.  cla.  3,  and  this, 
tnylont,  was  near  tlie  lime  of  making  of  th«  sta- 
tute of  Westm,  1,  and  this  precedent  is  lo  this 


both  those  shireii)did  receive commanduiem  by 
letter:)  train  tbe  king.  That  whereas  die  earl  of 
Warwick  had  comniauded  ilivers  persons  in  the 
custody  of  the  said  sheriff,  the  king  sent  a  letter 
to  the  saiit  sli«ri<T,  commanding,  that  to  those 
who  were  committed  to  bis  custody  by  tlie  earl 
of  WafwiL-k,  he  abould  shew  no  grace  to  ihem; 
that  is,  they  should  not  be  bailed.— The  sheriff, 
notwitlistnndmg  this  cummniid,  lets  some  of 
tbo'C  prisoners  lobiiil;  whereupon  he  was  com* 
plaint  of  in  pmrliamcnt,  that  he  bad  dona 
iigainst  the  king's  comroaudmeut,  and  be  war 
condemned  for  Ji. 

This  was  in  parliament;  I  wonder  this  should 
be  done  in  parliament,  and  that  it  wjs  not  said 
there,  that  this  commiUutnt,  beiuj;  done  by  the 
king's  commandment,  was  not  good ;  no,  be 
was  condeiniied  in  parliament,  f>ir  it  was  on* 
that  did  break  the  statute  of  Westm.  prim. 

My  loid,  the  use  tli:it  I  make  of  ibis  Ht.'cord 
is  this:  It  reciies,  thnt  the  earl  of  Warwick 
commhud  dive's,  it  might  be  ihai  be  did  cota^ 
mit  tliein  by  direction  from  (he  kin.: ;  but  tbe  . 
record  menliinetli  not  so  much,  but  it  shews, 
that  the  tang  by  letter*  coumuKled  the  shBriff, 


43]     STATE  TIUALS.  3  Chaius  I.  1037.— iVooecla^  on  lit  HiAtm  Corfu/,      [44 


Mut  he  ■bonU  sbew  thme  pmons  no  grace, 
Wi4  ;el  he  did ;  be  wn  cxanined  apon  lh», 
and  by  pirliameni  committed. 

IWiKit  mailer  I  will  rfffer  to  yom-  lordship's 
judgment  for  the  true  ei)>o)ition  of  the  law  in 
thb  case,  is  the  Book  we  call  The  Register,  od 
WJthsrity  respecceit,  it  is  the  roDndatian  of  all 
auf  writs  at  the  commoD  la*  ;  I  bring  not  the 
book.     Ib  this  book  [here  l«  oiie  writ  enith  [bus, 

*  Rex,  &c.     Quad  repiar'  fiic'  A.  nisi  tuenl  per 

*  Specude  nandalum  dommi  lept.' 

JuaCice  Doieridgr..     In  what  writ  is  that 

*  De  homine  replegiando  f 

Attorn.  Gftt.  Yes,  in  the  writ  <  De  botnint 
*rep)«fituMlo;'  and  there  is  anoiherwritdirect- 
cd  to  UK  comtAble  of  Dover,  in  the  very  gnmi 
words  ;  by  which  it  appears  that  they  that  are 
■npri»oiied  by  the  king'd  comioand, '  non  SDiit 

*  replejiabiles.'  Mr.  Fitzberbett,  agravejud^, 
wid  IS  in  ajitboricy  with  us,  penisinc  these  wnis, 
«iprea9ed  ti  in  tbtse  words  plainly  :  "  There 
«ue  MWie  cases  wherein  n  man  cannot  have  this 
writ,  alihougb  be  be  taken  and  detained  in  pri- 
•on;  US  if  he  he  taken  by  the  death  of  a  man, 
•r  if  he  be  taken  by  the  Commandment  of  the 
king's  justices;"  and  mentions  not  CMefJaft- 
lice ;  wkich  I  brliere  is  to  be  intended  not  of 
(he  chief  of  the  court  of  judicMore,  but  of  the 
chief  justice  of  England,  far  there  was  such  a 
-oae  in  tho^  days.  Thus,  my  lord,  jou  eee  the 
opinion  of  Mr.  Fitxiierbert  in  this  cme. 

Tlie  n«t  thing,  that  1  will  she*  your  lord- 
Chip,  is  tne  opinion  of  Mr.  Stamford,  in  hisPleas 
of  the  Crown,  fol.  78,  where  he  sets  down  ihe 
Slatuteof  Westminster  primo,  and  Chen  ha  adds. 
That  by  thiiit  appears,  that  in  four  cases  at 
the  common  law  a  man  is  not  replevisahle ;  in 
tbnse  that  were  taken  for  the  death  of  n  man, 
or  by  Che  comraandnicnt  of  ihe  king,  or  of  his 
justices,  or  of  the  forest :  and  there  he  saith, 
That  the  comnuindment  of  the  king  is  to  be  in- 
tended, either  the  commandment  uf  his  mouth 
or  of  bis  council,  which  is  incorporated  to  hko, 
and  speak  with  the  mouih  of  the  king. — My 
lord,  I  shiU  de>ire  no  better  commeniarics  upon 
a  law,  than  these  reverend  grave  Judgps,  who 
have  put  Boi>kj  of  Law  in  prinr,  .iiid  such 
Books  fis  none,  I  beliere,  *ili  my  llieir  jud^ 
ment)  are  weak . 

The  noxt  thjng  I  shall  offer  unto  your  lord- 
diip,  is  this.  That  1  cannot  shew  with  so  great 
Biithnrity  as  1  have  done  the  reet,  becaase  I 
have  not  fhe  thinn  itself  by  me ;  but  I  will  put 
it  to  your  lo^d^hlp'»  nxoiory,  I  precume  yon 
nay  wellremeinbGiit;  it  is  the  resolution  of  all 
tlieJudses,«hich*HsfpTenin  tlie34tbofqueen 
Xlimbeth,  it  fell  out  upon  an  unhappy  occasion, 
which  was  thus:  (he  Jni^et  they  complain  that 
Sherift  anil  othi'r  officen  could  not  execute  the 
process  of  the  l.iw  as  they  ou^ht,  for  thai  the 
parties  on  whom  «ucb  proceis  stiali  heexecnted 


hereupon  petitioned  the  Lord  Chancellor,  that 
be  would  be  a  luitor  to  her  majesty  that  notiiing 
ba  done  hereafter.  Aod  thcreapoo  the  Judges 
w«r*  deiiMil  to  ■taew  io  what  wweMew  tbai 


were  contmitted  itere  not  bailable,  whether 
upon  the  commitmeiitoftho  queen  or  any  other, 
—The  Judges  make  answer,  Thnt  if  a  man  shall 
be  committed  bylhe  queen,  by  her  comroand, 
or  by  the  privy  coancil,  he  i>  not  boilabie:  if 
jour  lordihip  nsik  me  what  authority  I  have  for 
this,  I  can  only  say,  I  hare  it  out  of  the  Boole 
of  the  lord  Anderson,  written  withhis  own  band. 

My  lord,  1  pray  yoa  give  me  leave  lo  obserre 
the  time  when  this  was  done;  it  was  in  a  time, 
and  we  inay  truly  call  it  a  gnod  ttme,  in  the 
time  of  good  queen  Rliiabelh,  and  yet  we  see 
there  was  then  cause  oi  complaint ;  and  there- 
fore i  >^ould  DOC  have  men  think  that  we  nr« 
DOW  gronn  so  bsd  (us  the  opinion  h  we  ore), 
for  we  see  that  tlien  in  those  tiroes  there  wat 
cause  of  compbiini,  and  it  may  be  more  than  it 
now. — This,  my  lord,  was  the  rrsolation  of  all 
the  Judges  and  Barons  of  the  Eichequer,  and 
not  by  some  great  one. 

Now  I  will  npply  myself  tn  that,  which  has 
been  enforced  by  the  counsel  on  I  he  other  side, 
which  Was  the  reason  lint  the  subject  hath  io- 

My  lord,  I  do  acknowledge  it,  but  I  must 
say  that  the  sovereign  hath  great  interest  in  il 
ton.  And  sure  t  am,  chat  the  lirst  slona  of  so- 
vereignty was  no  sooner  laid,  but  this  power 
VBSgiven  to  thesovereign:  if  you  ask  me  whe- 
ther It  be  unlimited ;  my  lord,  1  s^  it  is  not  the 
queninn  now  in  hood  :  hut  the  common  law, 
which  hath  long  flourished  under  the  govern- 
ment of  our  king  and  hii  progenitors  kings  of 
this  realm,  hulh  erer  had  thnc  reverend  respect 
of  their  sovereign,  as  chttt  it  hath  concluded  the 
king  cat!  do  no  wrong:  and  as  it  is  in  the  lord 
Berkley's  Case  in  Plowden's  Com.  316,  b.  it  » 
part  oi  the  king's  prerogative  that  he  can  do  no 
'rong.— In  die  4c)i  of  £dw.  4,  fol.  35,  the  king 


is  also 


1  tiie 


lord  Berkley's  Cnse  in  St  Hen.  8,  Dyer,  fol.  8. 

The  king  cannot  usurp  upon  a  patron,  Ibr  the 
common  law  Itath  that  reverend  respect  to  him, 
as  that  it  cannot  conceive  he  will  do  any  in- 
jury.— But  the  king  commits  a  subject,  and  ei- 
presuth  no  cause  of  the  commitment :  What 
then  }  Shall  it  be  thought  that  there  is  no  cause 
why  he  should  be  committed  f  Nny,  my  lord, 
the  course  uf  all  times  hath  been,  to  say  there 
is  no  cauts  expressed,  and  iberefore  the  matter 
is  Dot  ripe,  and  thereupon  the  courts  of  judica- 
ture hare  e*er  rented  satialied  therewith,  they 
would  not  senrch  into  it. 

My  lords,  there  be  ■  Arcana  Dei,  et  Arcana 
'  Imperii ;'  and  they  that  search  too  fhr  into 
■iheni,  and  make  chemselves  busier  with  them 
than  their  places  do  require,  they  will  make 
themselves,  &c.  1  will  say  no  more;  but  I 
shall  be  able  to  shew  that  there'  shall  as  much 
prejudice  come  to  the  kingdom,  if  God  direct 
not  tiie  heart  of  the  king,  which  is  in  the  hand 
of  God,  as  the  nvers  of  waters ;  I  say,  there 
TBayasmnch  hazard  cometotheeonmonnealth 
in  many  other  things,  with  which  the  king  is 
tnuted,  u  in  ibis  parttcdar  there  can  accrue  to 
the  subtect. 

If  ktNUHl 


,  Ciooglc 


4S}  STAIKTRULS,  3  Chakus  I.  IGVJ.-'-broiiisii  by  Sir  T.Dantd.ajid  alien.   [4* 


loi^  ago,  Dot  fir  roDOTed  from  our  mennriM ; 

•iiure  tbcre  ws$  a  treaAon,and  Ui«  uHors  tliercof 
fled,  some  (a  ihe  cuurt  ot'  lUuDe,  tonie  to 
Brussels,  when  it  was  te  be  pui  ia  execution  ; 
[be  trtHOB  beui  diEcavered,  one  is  iippretiend- 
ed  ufwii  MupiuDD  «f  it,  ftad  ^s  put  iaio  (lie 
Tower,  and  tLere  he  lietb,  and  thinketh  the 
tJEie  Tcij  lAiigi  and  t  cuinot  blamtiliiai. 

I(  maj  be  be  i*  iaaooejit,  and  thereupon  he 
btiep  a  Habeas  COTpus,  and  b;  virtue  of  Uiut 
writ  be  is  brsuaht  hither ;  and  will  your  lord- 
lUp  ibink  it  Gt  or  coaTeDieBt  to  bail  liim, 
■MQ  the  accusMioii  agaia^t  luoi  inuat  coiae 
fiam  bejoud  the  lea?  I  think  you  •vill  n- 
tber  sa  respect  the  prooeedingi  of  the  ttue, 
u  thit  you  will  believe<  tlwte  tbinKS  are 
iane  with  a  cause,  than  ioquirc  further  of 
tbe«. — Perwireoture  «o<ue  great  misdemeaDar 
BUT  be  comiaitEed,  and  some  of  the  pariias 
Bi^e  aw«j,  to  U  ProclHination  caonot  Over- 
take tbem,  and  some  are  taken,  is  it  Jit  that 
Ibey  that  are  in  priaon  ihould  be  tried  before 
tbe  priadpat  be  taked  f 

I  "ill  ifve  you  an  instance,  [tut  lately'  was 
pat  iMo  my  iniHd ;  there  be  loine  prisoners  in 
the  Tower  at  this  present,  which  were  put  in 
tbitber  when  they  were  very  jounf; :  if  they 
AouM  bring  aD  Habeas  Corpus,  they  were  im- 
)inMiBed  for  State-natters,  will  ysur  lordship 
itlittr  tliem  P  No,  in  that  the  stiite  doth  not 
Ibint  k  fit  lo  lead  them  back  into  tJteir  owa 
countriej,  you  will  cfiteem  so  reverenrflf  of  tbp 
itate  for  commicdng  children,  that  you, vill 
believe  tltat  there  is  great  reason  of  state  so  to 
do,  sr  eke  cbey  would  not  do  ic  :  maaj  incon- 
teniences  may  toUow,  if  it  should  be  otherwise. 
It  may  be,  divefs  men  do  sufier  wrongfully  id 
pRwn,  hot  therefore  shnll  all  prisoners  be  de- 
mrt4  f    Tbat  were  a  great  misCluef. 

No  doabt  but  the  king's  power  is  absolutely 
•wr  liis  coins;  if^en  lie  sliall  conUDajid  ha 
ODiasball  be  turned  ti>  bniss  or  lentlitr,  1  crn- 
fatii  vere  inconTenient ;  but  if  the  king  would 
itt  it,  tbe  answer  that  I  cuii  make  ii,  ihat  he 
weoM  not  undo  tlie  kiiiKdnm  :  Uii  cnn  your 
krdshlp  kinder  it,  as  beinE  an  inconvenience, 
ifbew'julddu  it?  The  Cnique  Ports  are  fr^ 
fbitradick  for  all  his  kuhjects;  but  ihe  kini  in 
lus  cabinet  uuderat.inds  there  is  danger  of  wnr 
la  come  apuli  this  JiiiiKdam,  thertupiin  he 
^is  tlie  ports,  that  no  man  can  go  out ;  slinit 
tke  iBerchHDt  say  this  is  injustice  in  the  kin°  } 
Aad  as  in  this,  s^  in  many  other  particulars 
thii  may  appear,  but  I  will  not  go  toe  high; 
sad  therefsre  wc  are  too  wise,  Bay  vre  are  ion 
inliih,  in  Uiidertaking  to  evniaiiie  raa tiers  of 
itate.to  which  we  are  not  born  Now,  ray  lord, 
I  come  to  onr  book-cases,  by  which  it  appears 
■hat  oar  kia^  m.iy  do,  and  uatfaiu  can  be  said 
sgBDSt  it,  but  iie  will  nnt  do  it;  (he  king  may 
ftiina  all  rraitars  and  tetnns,  and  ifhc  ^nuld 
4(1  it,  ninj  not  the  sahjecta  say,  IF  tlie  kini  do 
lUt,  the  faui  »ill  n>er«nme  the  good}  Rut 
•haQ  any  ray.  The  king  cannot  do  Ibis }  No, 
■emay  only  asy.  He  mil  not  do  this. 

Hie  kin|[  may  exempt  men  from  the  office  of 
lUri^u  not  ^ii  iBCDm*»i>iMtf    Aad  may  it 


not  be  said,  be  may  ciesnpt  ten  in  •  shire,  and 
(hen  tbe  bunleu  ol  ihe  country  shall  rest  ■pan 
the  meant^r  sort  of  ptnule  i  can  aoy  man  iwy 
more  to  [his,  llian  that  he  will  not  do  it  f — Id- 
heriiances  are  to  be  decided  npon  trial,  the 
king  ma;  exempt  private  men  ftura  being  oi  ■ 
Jur7 ;  but  if  be  exempt  all  mcDr  who  shall  tr« 
our  causes?  for  it  is  to  be  preauiaed,  that  hm 
will  not  doit. 

But  to  our  case :  By  the  statute  of  Mngn* 
Churtu,  no  man  shnll  be  pot  out  o[  bis  Free- 
hold, &c.  But  if  tlw  king  will  do  it,  uiosi  nut 
(he  party  that  is  sa  pui  out  go  lo  the  king  bjr 
peiitiou  I  But  you  will  say,  It  is  a  peiiiiun  of 
right;  and  It  oiay  be  [hese'gentkiiieti's  is  so; 
admit  it  be,  yet  when  such  a  petition  comes  to 
ihe  king,  must  it  not  be  answered  wiihiheic 
wuidi.  Soil  dnjil  /ail  ai  parte  1  And  whan 
the  king  will  give  thai  wuriaat  tor  it,  iktn  chej 
must  hnve  it  done,  and  not  hcrore. 

And  [his  miiy  answer  a  peipctual  inprisMK 
ment,  aikd  God  forbid  that  this  should  he  ao% 
and  QOw,  my  lord,  I  will  trtiuble  yon  no  longer, 
but  I  will  |a  to  precedents.  Pncedeuti  I 
knuiv  prevail  much,  and  rule  in  many  cases; 
and  if  the  precedeiili.  tliey  cit«  were  noPiuiaiD. 
terpreted,  I  ahuuld  tbink  they  had  said  a  gteat 

But,  my  lord,  I  will  answer  then-  piecedents 
with  precedents  ;  nny,  I  will  shew  yoar  Inrdsb^ 
that  the  (jiecedcntfi  which  they  havi.  cited  ue 
no  ptecedcDts  for  tbem. — iliid,  my  lord,  it  is  a 
dangerous  thing  fur  men  in  maiEtrs  of  weiKhC 
to  avouch  precedents  witli  coolideiice,  when 
they  m;ike  nntliiug  £br  them  :  for,  uiy  lord,  pre- 
cedcDtiare  now  bt- come  almost  proclamatioBs^ 
fur  tbpy  aJread}  run  up  and  donn  the  town  ; 
and  yet  they  know  hut  part  i>f  ihera,  and  not 
all,  and  I  think  if  they  kuew  aU,  men  woukl  b* 

But,  my  lord,  I  will  now  crime  to  these  Pre- 
cedents, where  I  m»y  say  ihcv  li»ve  not  denli 
frtely  with  me,  for  tiiey  Jiave  vhewed  me  many 
precedents  more  ihan  tliey  mentioned  liere, 
and  it  may  i  e  ihey  have  done  ihe  like  uoM 
your  lordship.  They  ollet^ed  but  8  prece- 
deiiis  betbri-  your  lord-ihip,  hut  they  baie 
brought  16  uuto  me:  for  thtse eight oseatiiined  - 
here,  1  mil  take  then'io  order  us  they  were 
cited,  and  >ms»er. 


mitted  for  -uspicK 
pressed  in  the  warran' ;  and  then,  my  lord, 
tliis  IS  clear,  if  the  kin^,  or  the  l^rds  of  the 
council,  will  elpress  any  tliii^  within  your 
liirdsliip's  jurisdiction,  there  is  tuad  eround  foe 
your  pniceediiiBS  ;  but  wlicn  there  is  nothing 
expreased,  wheti.er  you  will  fudj^  what  tlM 
cause  of  ihenarran'  is,  I  will  Ifave  to  yoor 
lordship's  judpnent ;  but  it  appears  this  was  tlia 
cense,  and  fiat  lie  was  delivered. 

The  next  )irecedent  was  33  H.  S,  Itot.  57, 
and  it  was  Parker's  case:  and  it  i^  true  d)4t 
his  comrnttment  appeared  to  be  ■  per'speciats 
'  niflHil—  d— ini  regis'  ^Mtt  it  wm  «Im  pto- 


47]     STATE  TRIALS,  3  Cham-bs  1.  lVi7^ProcadiBp  mlbe  a,baa  Cmpa,     [49 


poaed  to  be  '  pro  pace  et  lospicione  felnnJc  ;* 
and  die  slgnifi cation  of  ihe  coimnand  wni  given 
hj  Mr.  Peck  of  ClitTord's^Iiin  :  but  there  [be 
wamnt  shem  the  csiue  of  the  cnmmitment 
was  for  the  peace  and  suspicimi  of  felony,  and 
therefore  lie  wm  bailed. 

The  next  Has  in  40  Eliz.  Wendon's.case; 
but,  mv  lord,  tbat  commitment  iras  out  of  the 
Star-C  hamber  bj  an  ordinary  courae ;  then 
they  cited  8  Jdc.  Thomas  Cisar'a  case  ;  he  iu- 
de^  was  committed  by  '  speciale  mandatum 
'  domini  reffis,' and  brought  hiiMabeasCurpns, 
but  the  Koll  sailh  '  remititar  :'  and  is  that  a 
•nurant  for  them  to  say  that  he  wBs  delivered  } 

Then  sir  Tho.  Vernon's  case  was  dted ;  and, 
taj  lord,  when  we  l6oked  into  the  Records,  vro 
fbuiid  that  he  was  committeii  for  suspicion  of 
treaton ;  and  he  was  tried  for  it  nnd  discharged, 

Tlie  neat  precedent  was  »ir  Tho.  Momon's 
case  I  I  wonder  that  they  did  cite  that,  for  he 
was  committed  by  the  lords  of  the  council  in- 
deed ;  but  tlie  ground  of  it  was  suspicion  bf  the 
death  of  sir  Tho.  Overbury,  and  lie  was  dis- 
charged again  br  the  lonis  of  the  council. 
Certainly  if  they  had  known  this,  they  would 
not  hate  named  thig  as  a  precedent. 

The  neiE  was  Reynor'i  case ;  he,  my  lord, 
was  one  of  the  Gun-Ponder-Treaion,  and  yM 
libere  was  a  warrant  to  discharge  liim  too.  And 
tberefiire  what  tliese  precedents  are,  I  shall 
submit  to  your  lordship:  I  mu»t  confess,  when 
they  are  cited  together,  they  make  a  peat 
uoiie;  but  when  they  are  examined  teterally, 
they  proce  nothing. 

My  lord,  there  ii  one  more  precedent  that 
was  cited  here  before  your  lordship,  and  I  hope 
that  one  shall  be  ai  none.  It  was  mentioned 
to  be  Laurence  Brown's  Case,  30  Eliz.  I  know 
not  wbst  it  is,  but  it  is  like  to  be  of  the  same 
value  as  the  rest; '  Pro  certis  causis  eos  moven- 
•  tibus,  &c,' 

Aod  thus,  my  lord,  t  have  gone  (hrougli  those 

trecedents  that  were  alledged  here  before  your 
ird^ip ;  and  now  I  will  come  to  those  prece- 
dents that  were  brought  to  me,  and  not  men- 
tioned here. 

-  The  first  was  John  Browning's  case,  in  91 
H.  8.  ,  My  lord,  these  precedents  came  not  to 
me  before  Saturday  last,  about  candle-lighting ; 
and  yesterday  was  no  time&tting  to  sesrch  out 
precedents,  and  bow'could  I  liien  search  for 
Ihisf 

The  next  was  William  Koger's  case,  of  the 
same  time.  Bnt  the  cause  is  expressed  to  be 
for  suspicion  of  felony,  which  is  a  cause  within 
the  jurisdiction  of  this  court. 

Newport's  case  was  the  like,  in  4  et  5  Phil. 
rt  Mnr,  and  so  wai  Thotnas  Laurence'*  case, 
9  Eliz.  and  Edw.  Hercourt's  case,  5  Eliz.  which 
was  for  suspicion  of  felony.  R.  Beckwilh  and 
nut  Bartwiih,  a*  was  cited,  for  tliey  have  mis- 
taken both  names  and  matters,  was  committed 
'  per  specinle  mandatum  doDiini  regis;'  and 
the  Record  saith  he  was  bailed.  But  it  was 
by  reason  uE  a  letter  from  the  lordi  of  the 
council.  '  « 

Tlie  cauw  of  Peter  Man's  commitnent  in  the 


4  and  5  of  Philip  and  Mary,  i4^>ean  totbe  fbt 
suspicion  of  felony  and  robbery. 

for  Reynor'i  case,  it  is  the  aaxae  with  Bcck- 
wiih,  and  were  both  for  one  thing. 

In  the  8  Hen.  7  one  Roger  Cherry  win  com- 
mitted  '  per  mandatum  domini,  rc^is,'  and  it 
was  for  acriminnl  case;  and  he  wis  afterwards 
indicted  nnd  acquitted  and  deliiered.  And 
there  is  another  precedent  thereof,  that  siith, 
lie  was  ailerwards  arraiEoed,  condemned,  and 
banged  i  we  have  the  Record  of  it. 

And  now,  my  lord,  I  will  iihew  some  prece- 
dents on  the  other  side,  vrbeiY  men  haie  been 
commitied  by.  the  couiiDaDdment  of  the  iing, 
and  by  the  commandinent  of  the  council,  aiM 
bate  baen  delivered  again  byth«r  directions: 
andoftliiskind  there  be  two  in  the  Tower,  that 
as  ihey  were  committed  by  warrant,  so  by  wai>- 
rants  agaia  for  their  bailing  they  were  deliier- 
ed ;  ibe  offences  were  againkt  the  forest,  ami 
for  murder. 

In  4  E.  3,  Kf.  4,  Edmund  de  Newport  4ti 
Essex  was  indicted  (br  an  offence  committed 
by  him  in  the  Forest.  And  M.  7.  John  Fox 
was  hkewise  indicted  for  an  offence  by  him  don* 
In  the  Forest:  end  there  be  two  warrant*  to 
bail  them. 

M.  90.  John  Cobb  was  the  like,  and  there 
was  a  letter  from  the  king,  '  Quod  ponatur  in 
'  baUium  usque  ad  proximam  attisam.*  Tbe>e 
were  offences  within  Westminster  primo,  Uld 
there  be  several  warrant*  to  bail  them. 

The  clerk  of  this  coart  hath  many  records,  by 
which  it  appeareth,  that  many  have  been  com- 
mitted by  the  com^ird  af  the  king  and  of  th« 
queen,  and  of  the  council,  and  brought  their  Hb.^ 
beas Corpus;  and  theguccess  was,thatmaiiyof 
them  were  committed  lo  the  same  prisons,  and 
dirers  were  committed  to  the  niarihal  of  thia 
court ;  the  reason  was,  for  that  many  of  them 
were  to  appear  here,  their  cnoies  being  triabi* 
liera ;  and  it  would  have  be«n  a  great  trouble  to 
send  ihem  back  au  far  to  prison  as  into  the  coHn~ 
tries,  and  therefore  ihey  were  delivered  to  th* 
marrthel  of  ibe  king's  housiiold:  again,  manr 
had  their  trials  in  this  court,  and  srime  suffered, 
and  some  were  delivereil  by  special  command, 
ai  they  were  committed  by  special  commaad. 
— The  number  of  these  of  thii  nature  are  in- 
finite that  hnve  been  ii*  our  times;  we  have 
found  some  forty  precedents  of  men  committed 
out  of  the  Chancery,  and  by  the  high'Commi»- 
sion,  for  contempts,  and  some  by  the  barons 

05  the  exchequer,  and  sifiDe  in  London,  that 
have  been  brought  hither  by  Habeas  Corpus. 

Of  this  I  shall  observe,  that  in  the  11  Jac. 
there  was  a  private  constitution  in  London, 
made  between  the  white  bakers,  that  they 
might  live  one  by  another,  and  the  one  not  to 
invade  the  otbe/s  liberties  ;  and  for  contempt 
against  (his  ordinance,  some  were  committed 
topriion;  asThomssHeaning,  aodLittlepage: 
they  had  a  Habeas  Corpus,  and  the  cause  waft 
shewn  to  be  by  reason  of  ^e  said  constitution, 
and  thereupon  the  prisoner*  were  NDt  back  to 
I.jindon,  to  abide  the  order  of  the  mayor.  For, 
my  lord,  this  cootl  hiih  bees  ever  nreful  not 


«9]  STATC  TRIALS,  9  Chaum  I.  1027 .—inmght  fy  Sk  T.  Sana,  and  othri.  [50 
these  geDtitnwn  miy  be  reiaiuM,  and  left  to 
go  th^rigfat  way  fi^  their  delivery,  nluchii  \\ytt 
petition  to  the  king.  Whether  it  be  b  PatitKui 
of  righc  or  of  grace,  I  knaw  attt;  it  mmt  be,  I 
am  sure,  to  the  king^  bota  whom  I  do  person- 
rally  undentandthHUhesc gentlemen  did  never 
Cet  prcseot  any  petition  Ut  bim  that  cnme  to 
ii  kDowledge. 
L-CJiatia.'  Mr.  Attorney,  thus  much  we 
unit  say  to  you,  you  have  taken  a  pvat  deal 
of  paiui,  you  havmg  had  so  *liort  a  tin>e  to  con- 
lider  of  tlii»  caie ;  it  ia  a  case  of  very  great 
weight  and  eipeclatlon,  -nod  we  do  not  intend 
that  you  diull  expect  long  for  oar  reioliitioD, 
for  liiHt  these  gentlemen  are  in  priaon,  und  de- 
tire  no  doubt  to  know  nbere  they  nuet  trust; 
I  bope  we  ^11  resolve  according  to  the  rea- 


,ti>  euiuBB  the  Dewaea  vf  tbC'ChaDoery,  or 
CovnorRequuo,  but  have  oaty  looked  wlicEher 
the  cause  rMurned  be  wttbin  the  jurisdiolion  of 
thiscourt;  nor  have  ibey  called  ill  (fuestion  the 
by-lain  and  rtHiatitutians  of  Lnnduo,  but  they 
wad  them  bauk  to  ibe  court  of  JDstice  that 
oomoiiiieth  them. — Aadhaib  (bts conn  been 
Ml  (atetnl  of  dieae  inferiour  couttl  [o  this  which 
is  the  chiefs  and  when  the  Iking,  who  ii  the 
head  of  jiMtioe,  shall  commit  a  man,  shall  not 
Uwy  be  ■•  carerul  to  do  the  like  justice  to  bim  1 
.  Ak  ithen  the  king  aaiih  to  them.  The  commit- 
iHot  wat  by  my  warrant  and  coainiaiidment, 
■till  yuu  qneMioii  this,  and  whether  this  com- 
BlbMBt  Ml  good  or  no?  i  hope  you  will  not. 
And  iiow,aiy  lord,  tuucfcing  some  Precedents 
■hich  IsTe  been  taken  out  of  their  r>wn  shen- 
ia^  I  shell  make  it  appear,  that  as  they  have 
toCD  ctoKDicted  by  the  king  or  council,  so  the^ 
kad  mfraoti  alio  to  diidiaige  them :  and  they, 

?lord,  are  two  ancient  records ;  the  4rsc  is  T 
7,  8oL  e.  the  other,  Itoi.  73.  The  lirtt  wai 
Tbnaia  BratMi,  be  wot  committed  to  tht 
UaBhaliea,  '  per  mandntum  dommi  re^is^  et 
'  aliii  certia  de  oausis  i'  aiuf  afterwards  th«  re- 
conls  say,  '  DomiBus  lA  quoad  chase  relax> 
a,'  And  be  wis  bailed  and 


HyJonI,  I  wiQ  conclude;  I  couM  be  infinite 
at  th»caae  in  preocdeots,  but  enough  is  enough, 
yoOrlonUhipknoncth  the  wnght  of  precedents; 
ais  not  enni^  to  shew  this  wu  done,  hut  thif 
losfaew  tbe  reason  ^by  it  was  don«.  I  will 
MubleytKir  lonlihip^no  longer,  bat  ifuiy  man 
•hiH  doubt  whether  that  or  any  part  thereof 
be  iruly  recited  which  hath  been  said  louc^iing 
.  dK'Kecoid*  or  Statuies,  I  cud  say  no  more, 
fel  that  the  StatBl«9  have  b^n  read,  and  tbe 
Records  are  ready  sotted  out  to  be  jeen  by 
yMT.lordship. 

IdsU  conclude  (whnt  I  shall  say)  in 
ease,  toannrer  t  lie  feat  rather  than' the  just 
ponnil  of  them  thai  say,  this  may  be  a  cause 
«f  great  danger,  *-ith  the  wotds  of  Braeton; 
*ko  ^ke  not  to  flattei*  the  present  age;  lib. 
1-  cap.  3,  in  tbe  eUd,  speaking  of  a  writ  foi 
wrong  done  by  the  king  to  the  Subject  louch- 
ia;  bnd,  Ete  hadi  these  wordk;  '  Si  jodicium 
'«r(ge  ce^stalnr (cum  brera  non  currat  contra 
■ipum)  locos  erat  supplicationi  qnod  Ikctum 
'MafB'  eortipit  et 'emeiidet,  quod  qnidem  si 
'  noo  tecerit,  satis  sufBcit  ei  ad  poenam  quod 
'douinom  eipecret  ultDrein,  nemo  quideni  de 
'fietis  toil  prsstimat  dispolnre,  mJlto  fortius 
'  (Mitia  fikctum  suum  venire. '—My  lord,  I  Eng- 
hAitDoC,  for  I  apply  it  not,  any  man  may 
make  use  of  it  as  he  plenseth;  and  so  I  con- 
dode  both  for  the  point  df  exception,  nnd 
natrer  of  the  return,  which!  refer  to  your  lord- 
Ayijodumeiit,  whether  alt  iii  the  return  but 
>«e  wurds,  '  per  speciltU  mondatum  doraioi 
'  Ktis,' be  not  superfluous.  And  forthematter, 
•beiher  these  genttemen  be  bailahle  or  not 
ktilaUe,  I  ha»e  ihewAt  your  lonWiip,  that  hy 
*ke  practiceof  aB  ages  they  are  not  bailable,  but 
■»e  been  rtimanded  bftcb. 

And  therefore  I' pray   y»ur   lordship,  that 


of  former  tinjes,  and  accnrding  tx 
sciences ;  bat  this  I  must  tell  you,  as  I  did 
those  that  ai^ed,  you  must  bring  in  your  Fre- 
cedeoiE  ;  for  though  we  have  seen  some  of 
them,  yet  some  of^them  we  hare  not  seen, 
(herefure  we  desbfl  that  your  servants  or  your- 
selves do  attend,  and  bring  unto  us  after  dinner 
those  precedents  you  have  laealioned  on  the 
king's  part,  fw  we  intend  to  meet  this  after< 
noon,  and  yotl  ahall  have  our  Opinions  to-mm^ 
row :  and  i  must  tell  you  on  the  other  side, 
thnt  this  cause  being  of  such  weight,  counsel 
sbonld  be  Wary  bow  they  speak  any  ibiiig  to  in- 
veigle the  court. — Touching  such  precedents  as 
you  uT^d  in  some  of  them,  we  know  there  i« 
umetbing  urged  which  makes  not  tbr  you,  to  you 
have  omitted  ^ome  muceriat  things  to  be  shewn ; 
I  speak  it  t6  this  purpose,  not  to  prejudice  the 
'  cause,  or  lo  deliver  my  opinion,  which  become* 
me  not,  but  to  shew,  that  counsellors  sliould  be 
carefidi  and  this  I  dare  wy,  there  is  matter 
in  someofthc  precedents  themselves  thai  leada 
to  another  ca»e,  if  tliey  were  entirely  cited . — 
The  TeRn  grows  away,  you  shall  not  be  lone 
In  eipectatioB,  we  wil!  meet  this  afternoon,  sno 
give  you  our  Opinions  to-morrow  morning. 

Mr.  Naye.  We  desire  that  Mr.  Attorney 
niay  bring  the  precedents  of  91  F.liz.  with  faiih. 

Mr.  Attorney.  I  will  ihevt  you  any  ihiog; 
but,  my  lord,  1  shall  be  bold  to  claim  the  pVi< 
vilege  of  my  pluce,  as  the  king's  counsel ;  when 
■tbeling's  Attorney  hss  spoken,  there  ought  to 
hit  no  arguments  after  that;  but  if  you  atk  to  ' 
see  nny  ibing,  you  shall  have  it. 

X.  C.  JuXice.  It  is  that  we  aim  at,  that 
truth  and  right  may  appear,  nnd  not  to  satisfy 
the  ohe  or  the  otfaer  part ;  but  it  is  not  desired 
to  make  use  of  it  by  way  of  reply,  but  for  sa- 
tisfaction only. 

Serj.  Branulen.  My  lord,  for  the  precedents 
[  dted,  I  did   tliink  they  should  hafe  been    . 
hrvugbt  and  rrad  in  tlie_  court,  that  your  lonl- 


ihc  Reconlsand  Precedents  shall  be  brourht  t 
therour^  andreadopenly.for  the  court  will  ihii 
wrong  you,  and  you  shall  see  the  dillerence  be- 
n  them,  and  your  relation  of  them;  nor 
unit  not  wrong  ns  with  ywir  writlea  i*- 


'51]      ilTATE  TUIAUS,  SCharlhI.  \6Tl.—ProaxdmgiolnlitJIabeatCorpM,     [M 
Wg  Qumot  jadee  npon  tumnan  nor  reporO, 
but  opoa  that  vhich  is  before  ufl  on  record; 
end  uierefore  ttie  Ratnni  l>  eiaminabla  bj  m, 
nlwtberit  bs  lufficient,  ur  nni. 

'1  be  £<cepUon*  which  litic  been  uken  U 
this  Ketuni  vere  two:  Uieone  for  tbe^Dim, 
the  other  Tor  the  Subnance. 


On  "Hiundaj  the  38th  of  November,  Mi- 
chaelifl,  3  Canili  Regis,  Cliief-Justice  Hyde, 
JosCice  Dodeiidge,  Justice  Jortei,  and  Jwiice 
Wbitloclt  on  the  beach:  Sir  John  Corbel,  tir 

'  Waller  Earl,  tir  joha  HeveDingbuni,  aad  sir 

'  Edmuod  Hampden  at  ibe  bar. 


L.  C.  Jailice.     I  am  sure  you  here  eipect 

the  resolution  oftbewhnte  Court,  as  accordingly 
Teiterda;  we  told  jou  you  shciuld  have.  Tbii 
IS  a  case  uf  very  great  weight  and  zmt  eipect- 
ntion,  lod  it  bad  been  £t  we  sbuuld  have  used 
'  more  loleniii  ai^woeots  of  it  than  now  liir  the 
abortiMH  of  the  time  we  can  du';  for  you  iiave 
been  bag  in  prison,  and  It  is  £t  yoa  ihould 
know  wliereuQtci  you  should  trust :  I  am  sure 
you  expeet  justice  from  hence,  and  God  forbid 
we  should  Bit  bere  but  to  do  justice  to  ali  men 
according  to  uur  best  sliill  and  knowledge,  for 
it  Is  our  oaths  and  duties  so  to  do,  and  I  am 
•ure  there  is  nothing  else  eipected  of  us.  We 
are  sworn  lo  luainlala  all  Prerogntivei  of  the 
king,  that  is  one  branch  of  our  oalh;  and  we 
'  are  likewise  ^woro  to  odtniniiter  justice  equally 
to  all  people. 

We  cannot,  I  tell  voo,  deliver  in  soIcoid  Ar- 
.  gumeats,  and  give  the  Judgments  of  eiery 
of  us  louchbg  this  CRSe,  as  the  weiglit  thereof 
requiieth;  but  we  have  met  together,  hiuJ  we 
have  duly  and  seriouslj  considered  of  it,  and  of 
nil  that  which  bns  been  spoken  of  on  either  side, 
nnd  we  are  growii  to  a  Resolution,  and  my  bro- 
thers have  enjoined  me  to  deliver  to  you  the  re- 
tolution  of  the  whole  coutt;  and  therefore, 
though  it  be  delivered  by  my  mouth,  it  it  the  rc- 
solulKiu  of  US  all:  [hope  I  siiail not  mistake 
■  any  thins  of  thdr  intention  in  my  delivery ; 
but  if  I  do,  they  git  bere  by  me,'  and  I  shall  ool 
take  it  ilUf  they  right  me.  Therefore  I  must 
tell  you,  there  nsib  been  many  points  learnedly 
argued  at  |he  bar,  which  we  shall  nut  touch,  or 
give  our  resolution  upon,  but  bend  ourselves  to 
the  point  in  judgment  here. 

These  thrte  Statutes,  as  for  example,  tlie 
Statoie  of  Magna  Charts,  SS  E.  3,  aadse  £. 
S,  and  ibe  Statuic  of  Wesmimter  primo,  and 
divers  other  statutes  thai  have  been  alleilj^ed, 
and  particularly  disputed  of,  we  all  nckiiow- 
'  ledge  nod  tesohc,  that  they  are  good  laws,  and 
.  that  they  be  in  force :  but  the  iiiierpretatioa  of 
them  at  this  lime  belongs  not  to  us,  for  wc  ore 
driven  to  another  point ;  and  though  llie  raean^ 
ing  of  them  belongs  to  the  one  way  or  the 
other,  yet  pur  judgment  must  be  the  same ;  tor 
that  which  is  now  to  be  judged  by  us  is  this, 
Whcllicr  one  that  is  committed  by  the  kiog'a 
autlnrity,  and  no  cause  declared  of  his  com- 
mitmeni,  according  as  hen  it  is  upon  this  re- 
.  turn,. whether  we  ought  to  deliver  hini  by  bail, 
or, to  remand  him  back  ajisin?  Wherein  you 
must  know  tliis  which  your  ooun^l  will  tell 
you,  we  can  lake  notice  only  uf  ib 
.  and  wlien  the  case  appears  to  coni 
otherwise  than  by  the  return,  w 
buimd  to  trxaiaiue  (he  trulli  uf  the  i  ,  ._. 

t)ie  sufficiency  of  it,  for  there  is  a  trreat  dilTer- 
eiice  between  the  sufficiency  and  tlie  truth. 


the  Form,  whether  it  be  foniMlly  re- 
tnmed  or  no,  for  it  is  not  retained,  as  it  is  said, 
positively  and  abaotutely,  that  they  were  cou- 
mitted  by  the  king,  but  as  it  appears  by  a  war-  ' 
rant  from  the  lords  of  ibe  council,  and  then 
there  seems  to  be  a  coaimdiction  in  the  re- 
turn.— For  first  it  saith,  thry  were  committed 
by  the  king's  command,  and  afterwards  it  >l- 
ledgeth  it  (o  be  by  a  warrant  of  the  lords  of  the 
councd.  Bud  so  it  is  repugnant. 

Now  we  conceive  that  this  is  a  positive  ud 
an  absolute  Relum,  and  so  the  reason  is,  that 
he  lir^t  returns  that  tbey  are  detained  by  the 
specif  command  of  the  king,  and  if  be  had 
ceased  there  it  had  been  positive;  now  there 
folloHs,  that  this  was  sigoified  to  them  by  the 
lords  of  the  council.  This  is  retnmed,  to  ascer- 
tain the  coutt  that  be  returned  the  cause  tmly, 
and  to  sbenr  us  that  we  should  not  doubt  tM 
verily  of  this  return;  and  not  to  shew  to  OS 
that  he  Imth  no  knowledge  of  the  canSe  but  by 
the  signification  of  the  lords  of  tbe  courtcil : 
according  to  that  Case  of  tbe  bishop  of  Nor- 
wich, touching  the  Excommunication,  h^  mint 
testify  his  own  knowledge,  and  not '  contiuetur 
'  iu  archiris  :'  so  a  Sheriff  must  not  return 
quod  mandari  ball',  &c.  and  be  gives  tbis  »b- 
>i'er,  unless  it  he  a  baililf  of  a  liberty  that  bath 

And  BO  here  if  Ibe  Warden  of  the  Fleet  hsd 
returned,  (bat  the  lords  of  the  couDcil  had  sig- 
nified unto  him  tbnt  bis  prisoner  was  detained 
by  the  king's  commRndmeoi,  that  hod  ben 
sufficient:  hut  when  lie  returns  positively  at 
the  first,  [hat  it  is  done  by  the  king's  direction, 
heslwns  afterwards  tliat  which  shoold  make 
It  Hppcnr  Ihnt  he  deals  not  Falsely ;  which 
migliL  hitve  been  omitted,  but  being  meBtioned 
that  that  is  the  scope  of  it,  tmd  not  otherwise, 
the  return  is  good  and  positive. 

Nuw  then  to  the  other  Objections,  becanse 
be  speaks  nothing  of  the  c-.ipiioa  why  they  were 
taken,  yoa  know  ii  is  the  usual  return  of  all 
officers  to  answer  the  p«iiiE  in  question;  then 
is  not  one  word  in  ttie  Writ  that  demands  the 
cause  why  they  were  taken,  but  why  they  ore 
detained  :  so  that  the  point  in  the  writ  is  suffi- 
ciently answered;  for  though  someliines  it  is 
nccessRry  that  the  cause  of  the  caption  should 
be  certified,  yet  sometimes  it  is  soperduous : 
but  in  pur  CDse  the  cause  of  the  detention  <* 
sufficiently  answered,  which  is  tbe  demand  of 
the  H  rit,  and  therefore  we  resolve  tJiat  llie  fom 
of  Uiis  return  is  good.  Tbe  next  thing  is  the 
raiiin  point'  in  Uw,  whether  the  substance  or 
matter  of  the  return  be  good  or  no,  wli««o 
the  ^ubstallce  is  thin,  he  doth  certify  that  they 
■rt  detained  in  prison  by  the  special  comsaand 
of  the  king;  and  whether  this  be  good  in  iM 
or  no,  that  it  the  question. 


U]  STATE  ntlALS,  3  Chauu  L  ]«».— drwjfti  by  Sir  T.  Darnel,  and  oiken.   [H 


To  ilMparpoK,  ir  jou  muanber  (hit  point,  I 
sij  JOD  did  not  eke  mny  Book  or  Case  in  pnni, 
bai  manj  precedents,  wtiich,  I  cnuless,  Hre  su 
■UfMiMany  Book-cueiiforBook-caies.  Icoii- 
fcH,  uc  tkkea  and  lalected  oat  of  the  Kecordt 
Md  Uetoliitioiu(ifJiHl|ef,Biui  tliBt  is  itwiiicb  is 
ID  our  books,  tboDjEli  the;  be  not  w  obiious  for 
**eT7  «jc,  but  ■!«  Iband  oBt  b;  p«ins  nnd  dili- 
gtM  tMicb,  and  bang  prodaced,  nre  of  the 
»■•  and  equal  Bnthorit;  with  our  Boak-oa*es; 
hot  t)M  iniut  be  nben  Bccords  are  bniuglil 
bthloUy  mad  eotiral^,  so  that  tlie  court  msy 


Now 


•  the  Freccdentf ,  lou  urged  thrm  lo  be 
sj,  and  so  fuiJjr  to  the  point,  that  we  may 
(faerettj  tee  that  it  i*  good  to  bear  n-bst  can 
beaaid  on  Uilh  sidei,  and  for  to  hear  all,  and 
licw  tbe  Records  themselrea;  and  ihererore 
ire  rcqidrtd  joa  to  bring  tbe  Records  to  us, 
and  70a  did  to,  and  yoa  broo^ht  us  more  than 
joa  meaboaed  here;  and  ne  haTC  pertued 
than  all,  that  thereby  we  mi^ ht  see  wliether 
the  cuun  be  fiuchfully  dealt  withal  or  00 ;  for 
thoppb  ciHUUwllais  tnay  urge  a  book  for  tlieir 
own  adraotage,  yet  it  is  the  duty  of  tbe  court 
toseaaoddiitini;ui«hof  tbeiranegationsHs  tjie 
ttath  may  appear. 


«  laneh  as  you 
oiged  tbea  for;  for  if  you  remember,  you  urged 
MMie  preoedeuts  10  be,  that  where  men  were 
oBBUMtted  by  tliB  king,  or  by  the  lords  of  the 

comniued,  tliey  were  deliTered. — This  is  in 
ifiea  our  case,  if  the  precedents  aSinD  tbal 
wbiD  a  man*  is  committed  by  the  king's  com- 
nand,  and  no  just  cause  is  shewn,  that  upon 
sach  a  general  return  tbe  party  shall  ipio/acto 
be  delivered ;  for  if  tbe  return  be  nut  amended. 
Aen  be  shall  be  (liscbugeij.-^lf'i>r  |iithoug)i 
nea  come  with  prepared  minds,  ytt  the  pie- 
paradoD  of  every  man's  heart  ounht  to  submit 
10  die  truth,  nod  by  tbe  precedents,  you  tbnii 
•ec  if  it  be  *o  ns  you  have  allied  ;  but  tikis  I 
dare  affiim,  thnt  no  one  of  the  llccurds  that 
yaw  have  cited,  doih  inforce  wbM  you  have 
OKKladed  Out  of  tlinn,  no  not  one ;  and  tliere- 
fare  as  you  liare  cited  Recordl  and  Precedents, 
Precedent*  sbatt  judge  tbis  case. 

I  wiU  shew  you  bow  they  differ  from  the  Re- 
conb:  jou  have  cuncluded,  when  the  king 
iMlb  cnmmitted  one,  and  eapresseth  not  tbe 
gansr,  ttie  court  tialli  delirered  the  party  ;  but 
yoB  timli  see  the  contrary  concluded  in  every 
case  that  yoa  btite  put:  where  the  cvuie  ul 
the  fUHnmitineDt  bath  been  expressed,  there  the 
party  hath  been  delivered  by  ibe  court,  if  the 
caae  so  required;  but  where  <liere  hath  heen 
BO  cause  expressed,  they  have  ever  been  r^- 
Banded ;  or  if  they  faaie  been  delivered,  they 
hare  be^  delivered  by  the  king's  direction,  ar 
by  ibe  lords  of  the  council  1  if  this  fail  aow  iti 
proof,  yiNi  see  yoa  havo  gathered  Ikir  conclu- 
>i»n  oat  of  the  Kecnrdi ;  Sod  that  yiu  may 
«*  that  this  is  BO,  I  have  broucht  the  Records 
with  DM  of  your  own  propounding,  and  1  will 
p>  tiuoajh  theiD  from  point  to  point,  and  then 
jadge  jounelves  of  the  cue. 


.  It  is  not  mBteHsl  whether  I  call  for  ibem  in 
that  order  as  you  produceil.  llicm  or  ni^  oud 
therclbre  1  will  take  them  as  they  arr,  first  or 
last  in  tbe  kin^s  reign.  They  are  in  number 
many,  in  tbe  time  of  H.  7,  li.  8,  Mary,  Elii. 

J  will  shew  you  ur  Thomas  Monson's  Cuso 
in  11  Jac.  which  wss  iu  all  onr  meniotic*. 

I  will  be^n  with  Hill.  6  II.  7,  K.  Clierry't 
Cnse ;  you  vouched  it  to  this  purpote,  That 
Cbcn7  being  cooinitted  by  the  mayorof  Wind- 
sor, was  brought  hither  by  a  llnbeus  Corpus, 
and  tbe  mayor  returns  that  be  was  oonimLtted  • 
'  per  mandatum  domini  r^is,'  and  that  there- 
upon he  was  delivered;  but  yoa  shatl  find  by  . 
tlie  Record,  tbat  he  was  committed  by  th« 
ma^ or  at  the  suit  of  the  Ling  f.>r  felony,  for 
which  he  was  afterwards  indicted,  bruugbt  to 
trial,  and  Chen  ditobarged.  (Vide  this  Record 
in  Mr.  Selden's  A^ument  in  ilie  parli^iujbnt, 
S  &  4  Car.  Itegis,  and  so  all  tbe  rest  pottea.) 

The  next  was  19  II.  7,  Urswiek's  Caw ;  and 
you  say  he  was  brought  hither  by  tlie  Warden 
of  ilie  Fleet,  who;  as  you  said,  returned  that  he 
was  com  mil  led  <  per  innndaiun  dotnioi  regie,' 
and  you  said  he  wbi  ditcliai^,  but  be  was 
bailed  upon  the  Lord's  Letter,  and  brought  hi- 
ther to  record  bis  return,  for  be  was  bound  to 
appear  here,  and  then  he  was  discharged  ;  hut 
that  WHS  tbe  cause  of  bis  bringing  hither.  (Vide 
tlie  Records  as  albretaid.) 

Tbe  next  was  Hugh  Puin's  Ciise,  in  31  H.  7, 
and  that  you  urged  thus  :  You  say  tliat  he  ivas 
hrooght  hither  by  a  H.  Corput  by  the  Warden 
of  the  Fleet,  wlu)  returned  that  lie  was  com- 
mitted by  the  king's  council,  and  he  whs 
bailed  :  now,  we  fiud  that  lie  nns  commiiteJ 
bjp  them  fur  suspicion  of  feloiiy  ;  and  that 
cause  was  declared,  and  be  was  bailed  ;  so  ihat 
TOO  see  there  was  a  cause  eipresiied.  (Vide  the 
Record)  aforesaid.) 

The  nr^t  is  3  H,  8,  Thomas  Beckley,  and 
Robert  Harrison's  Case ;  these  you  saiil  wer» 
brought  in  hither  by  Gennte,  earl  of  Shrews- 
bury, and  I'hnmni  earl  of  Surry  ;  and  the  re- 
turn HUB,  thai  ihey  were  committed  by  the 
command  of  H.  7,  and  that  they  were  bailed  ; 
but  you  shall  find  that  th^  were  committed 
fur  suspicion  of  felony;  and  tbni  Harrisoa 
was  couimiited  by  H.  7,  but  it  wns  for  Hami- 
cide  upon  the  sea,  and  so  the  cause  is  express- 
ed, and  ailerwards  he  was  bailed.  TheiiGxt 
HiisiuSi  H.  8,J<ilin  Parker's Cdse  :  you  urged 
it  to  this  purpose,  Tliat  he  was  brought  hither 
by  H  U.  Cnrpug  by  the  slierifis  of  Luudon,  and 
thiiy  you  eaid  returned,  that  he  was  cnmniiited 
'  per  spctUaie  TTiandaium  domtoi  regis  nuncia- 
'  turn,'  &c.  by  Robert  Peck,  &c.  The  cause 
why  yr.u  urgeil  this  was  iwo-fuld ;  1.  That  JM 
Was  committed  by  the  king's  command,  and 
ret  be  was  bailed:  idly,  'Ibat  he  was  com- 
mitted '  per  mandatum  dumint  re^is  nunciat',' 
per  such  a  une :  but  yoa  shsll  find  by  the  He- 
cord  lliat  he  was  committed  fur  the  srcurity  of 
tlie  peace,  and  fur  susuicinn  of  felony,  and 
thnt  wit)  the  cause  for  "liichliewas  bailed,  for 
he  is  bailable  by  law  when  such  a  cause  ap- 
pearl.    (Vid«  the  R«cord  as  tfoiewiil). 


55]     STATE  TRIALS,  S  Chasles  I.  iS'Il—hroeeedin^oniiellabetuCoiftt,     [30 


Go  on  to  the  mex\,  uxA  that  ia  Peter  Mali's 
CiBe,  in  tbe  3  and  4  Phil,  and  Mary ;  you 
urged  tliBt  to  this  puqKise,  jnit  s&y,  tiikt  he 
ma  brought  by  tlie  Keeper  of  the  Gate-luule, 
and  you  say,  that  be  icturued,  that  he  wai 
comniitled  by  the  connnand  of  the  Iniig  and 
qneeu't  council,  and  thereupon  he  wnt  bailed ; 
but  ^0U  ihall  lind  that  he  was  cammlit«d  for 
mspicion  of  felony  arid  robbery,  and  thereupon 
he  was  bailed. 

The  next  ta  in  the  4  and  6  Phil,  et  Mar.  Ed- 
ward Nevrport'i  Caae ;  you  tdd  that  the  Con- 
etable  of  the  Tower  brought  him  hither,  and 
returned  that  he  was  committed  by  tb*  council 
of  the  king  and  qaeen,  nod  that  be  wntr  bailed : 
but  you  see  by  the  Records,  thw  he  was  com- 
mitted  fbr  luspicion  of  coiiiiog,  which  is  baila- 
ble only  in  this  court,  and  tlierefore  it  wa«  re- 
moved nither.  Yet  this  I  must  tell  yon,  that  ic 
■■  true,  in  one  Record  it  appears  not  hot  as 
you  have  cited  it ;  but  you  may  see  how  it  is 
supplied  by  another  record,  and  the  cauw,  nnd 
he  was  delivered  by  a  pmclamaiion.  (Vide 
both  Records  in  Mr.  Sctden's  Argument). 

Doderidge,  He  could  not  be  delivered  by 
prodamulion,  unless  it  was  ibra  criminal  cause. 

L.  C.  J.  (Hyde).  Observe  anotlier  thing  in 
tbe  Book,  he  a  bfougiit  hither  by  the  special 
command  of  the  cunncil :  so  that  although  it 
nppenra  noi  in  the  recnrd,  yet  if  the  king  or 
jords  mean  tu  have  hioi  tried  for  his  life,  be  is 
brought  hiflier.  Then  you  cited  Robert  Con- 
Unble'i  cas«,  9  Eliz.  and  you  said  he  wni 
brought  hither  by  the  Lieutenant  of  the  Tower, 
who  returned  that  be  was  committed  by  the 
lants  of  the  council,  and  thereupon  be  was 
bailed ;  but  you  shall  find  that  tie  came  hiiher 
'  to  plead  h]«  pardon,  and  he  wu  pardoned. 
(Vide  the  2tecord  as  afbresaid). 

Thomas  Lawrence's  Case  tn  9  Eliz.  is  the 
same  wiih  Canslnble's,  for  it  appears  that  be 
was  brought  hither  to  plead  his  pardon,  and  he 
was  pardoned,  and  that  was  the  caose  he  was 
brought  hither. 

The  next  was  in  the  31  £lii.  JoXn  Brown- 
itii's  Case ;  it  is  true  he  was  committed  by  the 
lords  of  the  council,  and  be  was  brought  by  a 
H.  Corpus  to  ihe  chamber  of  ur  Christ.  Wray, 
diief-juitico,  and  he  was  there  bailed. 

llie  next  w^  33  ?:iiz.  \Vm.  Rngecs;  and 
lie,  you  said,  was  brought  hither  by  the  Keeper 
of  the  Gate-house,  who  returned,  that  he  wua 
cominicted  to  hira  by  tlic  lords  oT  the  cnnncil, 
yet  there  was  n  cause  expressed,  and  that  was 
for  suspicioh  -of  Cuiningof  money. 

The  next  was  in  39  Elii.  Laurence  Broome ; 
you  say  ihnt  he  was  brought  hither  by  the 
keeper  of  the  Gate-house,  who  returned,  that 
he  was  committed  for  divers  causes,  moving  ibe 
lords  of  rtie  council,  and  thereupon  he  was  de- 
livered ;  but  the  Record  is,  that  the  return 
also  waiforsuspicion  of  (reason  ;  and  although 
tbe  sutpicioi]  of  treason  appears  not  in  one  Re^ 
cord,  yet  there  is  another  (or  it.  Herevmi  see 
tbe  cause  of  his  cominitmrnt,  and  that  be  was 
bailed,  bat  it  was  by  the  kin^s  command, 
Sffw  Oct.  ISchaelit.    (Vide  tfe  Becord],-~ 


I  blame  bm  yoa  tfaat  are  of  connael  with 
Eendeinen  for  ur);ing  this  Record,  foi 
IS  not  expressed  in  yoi 
was  comioitted  by  tite 


Record). 

The  nert  is  in  40  Elic  Edwaid  Hareoan'i 
case,  and  lliotnas  Wendea'tt  case ;  I  bri^ 
them  together,  because  tbey  are  b«di  is  oac 
year.  In  the  40  of  Eliz.  Uarcourt,  yqn  say,  was 
committed  tu  the  .Gate- house  by  dM  lords  at 
ihe  council ;  and  tbe  rcium  was,  that  he  was 
ciOnmitted  by  tfaenl,  '  Certia  de  caolil  iptos 
'  moventihus  ignotis,'  and-  he  was  bailed. — 
Here  is  another  in  the  same  time  oommiKed  to 
the  same  prisaa  by  tlie  hirdi  in  the  Star-Cham- 
ber, it  was  'I'homas  Wenden's  case;  and  he, 
you  say,  was  cummiUed  b^theui,  'certii  de 
'  causis','  (as  the  other  wa«)  and  that  ba  waa 
bailed;  but  yoa  sliail  find  in.riienMt^ii«f  tbe 
Roll,  '  Traditnr  in  hall'-ei  aasensn  ooneilii  dt»>' 
'  mina  r^DK;'  and  tbat  was  the  relation  oF 
tbe  queen's  Attorney,  so  that  yoaMehowllw' 
precedent  fits  yuu. 

The  next  are  two  laore  eotaroitmenta  to  ttm 
Gate-house,  Beckwith  and  Heyner;  tbey,  you 
said,  itiere  committed  to  tbe  Gate- lio  use, 
broueht  their  II.  Coi^as,  and  lite  Keeper  of 
the  Gate-hoiHe  returned,  [hot  they,  were  eom- 
initted  by  virtue  of  a  warrant  from'  the  abp.  of 
Canterbury,  Henry  earl  of  Northampton,  lord' 
n-anten  of  the  Oiuqae  Poru,  and  others  of  the- 
privy-couucil ;  requiring  die  suid  Keeper  to  re-' 
ceive  tlie  satd  Beckwirh  and  Reyner  into  his 
charge,  until  they  should  have  furtlier  order 
troDi  them  in  that  behalf;  and  you  say  tliey 
•fere  bailed.  (Vide  the  Reeord  in  Mr,  Selden 
aforesaid), — Nou-  you  shall  see  the  direction  Co 
hail  him  ;  he  was  bailed  by  the  direction  from 
the  lords  of  the  council,  fis  appears  by  tbeir 
letter.      (Vide  as  aforesaid). 

Now  we  corae  to  Coisar's  Case,  in  8  Jocobi ; 
you  uigtd  that  to  this  purpose ;  you  say  he  was 
committed  to  ihe  ManhHisea,  who-  upon  n  H. 
Corpus  retvmied,  that  be  was  committed  '  per 
'  speciale  mandatom  domini  regis,'  and  yoD' 
say,  because  the  return  was  so  ;>enenil,  (he 
rule  of  the  court  was,  that  it  should  be  amend- 
ed, or  ebe  he  should  be  discharged.  I  will 
open  to  yoa  what  the  reason  of  that  rule  was,' 
.for  tliat  notice  was  taken,  that  the  Keeper  of 
the  prison  had  used  n  false  return,  and  hod 
usurped  the  name  of  tire  king ;  I  know  not 
how,  but  tbe  cenunitoieat  was  not  by  the  kiirg's 
command ;  and  that  was  the  cause  that  be  had 
a  day  given  him  tn  nniend  bis  return,  but  hU 
body  WHS  rauaniled  to  prison,  as  you  shall  see 
by  the  Record,     f  Vide  the  Record,  tee.). 

The  last  precedent  that  you  nsed,  was  that 
of  sir  Tho.  Monson  ;  and  that  was  so  notori- 
ous, and  BO  laic,  that  I  marvel  thai  was  oftred- 
at  alii  it  mnde  me  jenlnas  of  all  the  rest,  lltat 
was  >o  notorious;  and  now  I  have  omitted 
none  ^ou  brought  me.  (Vide  the  Record.) — 
B^  this  Recant  you  may  see  iliat  he  was  com- 
mitted by  divcA  brds  of  the  coancil;  uMtit 


57]  3r4lT£  TltiALS,  »CaAti.»I.   itsSfl .^-bnngit  by  Sir  T.  DtmUl.  mi  others.    [H' 


■Mfartke  «n]Ncion«f  IliBdMtfaof  «r  I1)n. 
OMffaurj ;  Bod  it  i*  notoriotitl;  kaown,  ^lat  be 
ms  bfMgfat  Mwr  t»  plaarf  b'a  paidon. 

1  «iU  DM  uU  joa  tlwt  7«a  rend  nil  Ui«m 
aecedwiti,  br  jsu  read  /loiw,  but  nrgnl  them 
Wt  bafint  of ;  bat  wa  required  jou  to  bring 
Umi  10  iM,  and  thej  were  brogght  to  uh,  Mr. 
CwbA  brouglit  tbcm  lii  bat  ddc,  nnd  that  Mi 


&M  I  nerer  mw  before,  nor  ii  he  dow  in  mine 
at,  did  ^aterds;  brinf  lu  ose  precedeiw  to 
OkfotfOhBi  and  it  was  sir  John  Brocket's 
Cut  ID  1  Jac.  be  fraa  committed  to  ibe  Oate~ 
hoow,  Md  upoa  a  Habeet  Corpos,  the  Keeper 
moraed  that  '  CenmiM'  fiiit  per  wnrraDCuni 
■  daninomm  de  privat'  concilio,  cujus  (anor 
'MfoitBTiahMt  verba,'  viz.  'To  the  Keeper 
•«r  the  OatcbiHMr/  &a.  (Vide  Mr.'  Sel- 
dn*!  pfccedeoti ;  bat  lee  upon  whM  irouiid 
b> »M  bailed,  it  wa«  a  spedel  commandof  the 
lordiof  ibc  couodl.     Vide  the  Record). 

Ttee  are  all  the  Records  and  Precedents 
thu  yoa  aiiaiHered  onto  us  in  jrour  Argnnwat, 
Md  thit  wer*  driirered  unto  us,  Ibr  I  have 
dwll  UibM];  (rich  you  ;  and  now  jm  have 
Mta  ibeoi  in  the  Etua,  I  (•oiiM  have  ani  man 

eg  oTlhe  conclawoD  which  you  made  the 
d^,  tbatwhen  a  man  is  committed,  and 
the  case  ool  known,  but  it  is  certified  to  be  bjr 
Ike  kii^s  qiecial  coaimandnent,  and  the  Ha- 
Imt  Corpus  is  procuied  bj  jourselvet  and 
tfeal»i  hj  the  king,  that  we  can  dischai^  or 


pxprcssed,  it  is  to  be  presumed 
to  be  fbr  matter  of  Mate,  wbicb  we  cannot  take 
aolicear;  you  see  we  (tod  note,  no  not  one, 
thii  hitb  been  delivered  by  hail  in  the  like 
cues,  bet  by  the  'hand  of  the  kipg  or  his 
direction. 

If  we  shonlH  ceoM  here,  jou  see  you  have 
aheini  nothing  to  antiufy  m,  and  we  know  that 
foe  that  be  of  their  conniel,  will  satisfy  your 
cSenti  therein.  But  you  sball  see  that  we 
biie  taken  a  litile  pains  in  this  case,  and  we 
■in  riiew  j'oa  some  Precedents  on  the  other 
ade;  and  I  betiere  there  be  900  of  this  nature, 
Ikatraay  b«  died  to  tliit  pnrpese.  I  shall  go 
mrogade,  and  go  bachwtirda  id  citing  the  years 
of  the  precedents  ^at  I  ahall  mention. 

I  will  begin  with  1  H.  B,  Edward  Page,  he 
WM  broi^t  hither  by  the  Steward  rif  tlie  Mar- 
ihtlses,  wbo  returned  that  he  vm  cntnmitted 
'per  mandatum  domini  regis,'  and  he  was 
imicted,  ao  that  he  wm  not  delivered  upon 
■bs  poend  return,  but  be  was  remanded. 

fit  neit  was  IS  H.  7,  therv  yon  shnll  see  a 
pecedeot  wliere  one  wait  committed,  his  name 
*ii  Thomas  Yew,  he  wag  committed  for  felony, 
and  ahu  <  per  mandatum  domini  regis,'  and 
tks  king's  Attomey  came  hither  and  released 
ik  kii^  command,  ami  tberenpon  he 


Mr.  Jfojn*.     It  is  all  one  with  Patirr's  cas«, 

L.  C.  J.     No;  for  bere  were  two  cnuaei  nf 

(lie  commit nent^  Hubert  was  ihen  tlie  king's 

Attorney,  and  lie  signified  in   open  court  tlial 

'  e  was  ditcbai^ed  by  the  king's  command,  luft 

Poilea  trnditur  in  bull'  pro  suspicione  fetoniz.' 

The  nem  was  Humphrey  ftoch,9  H.  7,  Rot, 

4.  >ou  shall.find  it  much  to  ihat'  purpose   as 

the  other  was  before ;  he  was  imprJMined  for 

lullanry,  nod  by  the  coinmandment  of  the 

king  also,  aad  afler  that  tlie  release   of  the 

king's  coinmandmeuc  was  rertlfied  to  the  chiefs 

Justice,  he  waa  thereupon  diacbarged.     (Vide 

the  Oecoiti). 

The  neit  is  7  H.  7,  Thomas  Brown,  John 
Rawliiigs,  Hubert  Slieruiuii  and  others,  were 
committed  '  per  miuidatum  domini  regis,'  aail 
fur  felony,  outlawry,  and  other  causes,  as  ap-  ' 
pears  by  the  Records,  and  after  the  king  re- 
leaseth  bis  commnndmellt,  and  that  the  oat' 
lawrv  should  be  reversed,  and  for  the  felony  he 
was  bailed.     (Vide  tlie  Kecord). 

9<i  that  you  may  see  ihe  offences  mentioned 
the  Warreut  for  the  commitment  «ere  tria- 
ble here,  and  fihen  the  king  releases  his  com- 
mandment they  were  bailed   for  the  rest,  htit 
they  that  were   cocamitted   by  the  command- 
ent  of  the  king  nere  released  hy  the  king.  - 
In  7  H.  7,  ih*  cases  of  Wm.  Bartholomew, 
Henry  Carte,  William  Chw*,  aiid  others,  is  to 
the  same  clTect,  by  all  which  you  may  see,  ihM 
when   the   king  rdeaseth  liis  commandment, 
they  were  baited  for  the  rest,  and  as  they  were 
committed   by  tlie  king's  cummandrnftot,    so 
they  wercrelcaied  by  tbe  king's  command. 

Now  here  I  shall  trouble  you  with  no  more 
Precedents,  and  you  see  your  own  *hat  conclu- 
sion they  produce.  '  And  as  to  those  Itroog 
precedent!)  alledged  on  the  other  side,  we  are 
not  wiser  than  they  thar  went  hcfbre  u;  ;  and 
the  common  custom  of  the  law  is,  the  CununoD 
Law  of  the  land,  and  rhat  hnth  been  the  con- 
tinual common  cubtora  of  the  law,  to  which  we 
ata  to  submit,  fur  ne  come  not  to  change  tbe 
law,  but  to  submit  to  it. 


lution  of  all  the  Judges  of  England,  in  34  I^lir.. 
We  have  considered  of  the  time,  and  I  think 
there  were  not  before,  nor  have  heen  since,, 
more  upri^t  Judges  than  they  were,  Wray  uaa 
one,  nnd  Anderson  another;  in  Easter  term 
all 

Excbe- 

quer,  in  a  duplicate,  whereof  the  one  vas  ileli- 
Ttred  to  the  Lord-Chaiicelior,  and  the  other  to 
tbe  Lord-Treasurer,  to  be  delivered  to  tbe 
queen.  We  have  compared  our  copies,  not 
taking  them  the  one  from  tbe  other,  but  hrine- 
ii^  tltaro ;  we  have  long  had  them  by  us  toge- 
ther, and  they  all  agree  word  for  word;  and 
that  which  Mr.  Attomey  snid,  he  had  out  .of 
Judiic  Anderson's  Book,  and  it  is  to  this  pur- 
pose, to  omit  other  thing;,  that  if  a  man  be 
committed  by  the  cumniandmeiit  nf  the  king^ 
he  is  not  tn  be  delivered  by  a  Habeas  Corpus 
in  this  coDirt,  for  we  know  not  tbe  CuiM  of  the 


M]  STATE  TRIALS.  3  Ca«LM  I.  1627-8.— J 


(Vida  the  latter  end  of  tbe  fint 
pan  of  Mr.  S«ldeii'*  a^ument,  ai  afomaid). 

But  the  questiaii  now  is,  Whutlier  we  may 
deliver  this  gemleiiiiui  ur  nut?  Yoti  s«e  vrhat 
hatli  been  tlie  practice  in  nil  the  kiagi  time& 
berelotbrr,  and  jour  unn  Records;  and  (IiIb 
resolution  uf  ail  Che  Judges  lenclicth  us,  and 
vhuC  cun  «e  do  but  walk  in  ttie  ^tejis  of  our 
furcfnihers  i  If  vou  nsk  me  irhicb  way  yuu 
shuuld  be  deliiereil,  weaiiall  idl  you,  we  must 
not  counsel  you.  — 

Air.  Attorney  h.ith  told  you  that  tbe  king 
luili  done  it,  and  neiruit  hunin  greut  raattera, 
and  he  n  bound  by  law,  and  be  bids  us  pro- 
ceed by  law,  >s  we  are  sworn  to  do,  and  so  is 
the  king;  and  we  make  no  doubt,  but  tlie  king, 
if  you  seek  to  bim,  he  knowing  tbe  cnuse  why 
70U  nre  imjjrisoned,  be  will  have  mercy  ;  but 
we  leave  cliat.  If  injustice  we  ought  10  deliver 
jDu,  we  would  do  it;  but  lyion  iLe>e  grounds, 
and  these  lUconis,  and  the  Precedents  and 
Ilesoluiions,  He  caauot  deliver  you,  but  you 
ilLiist  be  remanded.  Now  if  i  hktre  mistaken 
ahy  thiuc,  I  deaire  to  be  righted  bj  my  bre- 
thren, 1  have  endeavoured  to  give  tbe  Kesolu- 
tionsof  us  all.* 

■  PROCEEDINGS  IN  PARLIAMENT 


LIBERTY  OF  THE  SUBJECT. 
The  Gentlemen  continued  in  custody  till  the 
!9th  ot' January  following,  when  iiis  majesty  in 
CiiuDcilorderad  nil  oftliem  to  be  released;  and 
nrits  being  isbued  about  this  time  for  electing 
mcmbfn  of  paj-liBnient,  to  meet  March  tbe 
ITlb,  1G97-8,  those  gentlemen  who  suifered  for 
the  Loan,  uere  alecied  in  iniiny  plticrs.  On  the 
ITih  of  March  tbe  houteniet,  ana  air  John  Finch 
wns  chosen  Speaker.     On  tbe  30ih,  the  liouse 


'  Mr.  Wbitlock  in  bis  Memorials  of  the 
Enjish  AtEiirs,  p.  8,  (eilit.  1739),  snya,  "  Five 
of  the  icnpiJsonfd  genilemen,  by  Hiibeas  Cor- 
pus were  brought  to  the  Kin^'s-bencli;  aod 
(by  their  counsel  assigned)  tiiok  ciceptiont  10 
the  Heiurn,  "  For  th.ii  it  had  not  the  cuuse  of 
tbeii  Ciiuaiitiiient,  but  of  their  detainer  in 
priso  1,  '  per  speciale  inandatum  regis,'  which  is 
no  particular  cause;  and  the  Inw  being  most 
tendet'  of  ihe  subjects  liberty,"  Noye,  Selden, 
Brnmston,  Callhorpe,  and  others,  who  were  of 
count*  1  for  ibe  prisuuera,  prayed  they  might  be 
release  I  and  dischnrgnl. — llouth,  the  King's 
Atlorni  y,  at  another  day  nrgued  in  mainte- 
nance nflhc  Rflurn.  .  Hyde,  L'bief-Justice,  de- 
clared the  opinion  of  ibc  court,  "  That  the  Re- 
'  turn  wJMpoailive  and  absolute,  by  the  king's 
'  special  command,  and  the  siguificatiou  nf  it 
'  by  the  lirdi  of  the*council  is  only  to  ioforin 
'  the  court  ;  and  that  the  Ilubeas  Coipus  is  not 

■  to  return  the  oause  of  the  iinprisonment,  but 
'  of  tlie  Ueientiun  in  prison ;  that  the  matter  of 
'  this  Return  is  tulHcient,  and  the. court  is 

■  II)  ciuinini' the  tiutb  of  tlie  Return,  but  ir 
'  take  it  lis  it  is.  Su  llic  Piijoiirr*  were 
'  manded,"' 


settled  their  CommitteM ;  and  theild  wm 
spent  in  opening  tbe  Grievance*,  as  Billeting 
cil'  Soldiers,  Loans  b^  Benevulende  Mid  Privy- . 
Seal,  and  tlie  iiapriaoaing  ceruiii)  GcnttcmcQ 
who  refused  to  lend  upon  that  Account,  who 
■fierwurdi  bringing  their  Habeas  Corpus,  woe 
notwithstanding  remnnded  tn  piison;  uor  did> 
the  biiuBc  incline  to  supply  his  msjenty  till ' 
these  Grietauces  were  redressed.     To  wbicb. 

Sir  fieinfiiSi^fliotir  spoke  thus  1 
'I  hia  is  tbs  great  council  nf  ibe  kiagtUuB, 
mid  here  (if  not  here  alons)  bii  majesty  may- 
see  as  in  a  Crve  gUss  lite  state  of  tbe  kingdom ; 
we  are  called  hither  by  his  majesty's  nrits  to 
give  bim  faithful  counsel,  such  as  may  slancl 
with  his  bonuur ;  but  this  we  Diiiit  do  witlioot 
flattery  :  we  are  sent  hither  by  the  ctunmoiu  to 
iliscbikrge  that  trust  reposed  in  us,  by  delireriog 
up  their  just  Grievances,  and  iJiis  we  must  do 
witiioiit  iL-ar :  let  us  not  therefore  be  like  Cain- 
bvses's  judges,  who  being  demanded  of  their. 
kini;  wlielher  it  were  not  lawful  for  hiu  to  do 
what  in  itself  was  unlawful  f  They,  rMber  to 
please  the  kin^,  than  to  dl«cliaive  iheir  owa 
conscieuce:,  answered.  That  the  Persian  king* 
mi^ht  do  what  tbey  listed.  This  base  flattery 
tends  to  mischief,  being  litter  for  repiouf  ihait 
imitation  ;  and  as  flattery,  so  fear  taWth  away 
the  judgment ;  let  us  not  then  be  possessed, 
with  fear  or  Battery,  ofcorrupbons  the  bawat, 
Fifr  my  own  pan,  I  sh^U  shun  both  tliese,  aod 
speak  my  conscience  with  as  much  dut^  to  hii 
majesty  as  any  man,  but  not  neglectmg  tha 
public,  in  which  his  majesty  and  cne  common- 
wealth have  an. interest :  but  how  can  we  shew 
our  aflections,  H-liilst  we  retain  our  fears?  nr 
how  can  we  ibink  of  givuig  of  subsidies,  till 
*e  know,  whether  we  nave  anj  thing  to  give 
or  no  ?  For  if  bis  majesty  be  pen^aded  by  any 
to  take  from  bis  su^ects  wliat  he  will,  and 
where  itpleaseth  liim;  I  would  ^dly  know 
Hhai  we  bave  to  give  J  It  ii  true,  it  is  ill  with 
those  subjects  tliat  shall  give  laws  to  their 
princes,  and  as  ill  with  those  princes  which  shatl 
use  force  witli  those  Uw!i ;  tJial  this  both  been  ' 
done,  appeareth  by  the  billeting  of  Soldiers,  a 
tiling  no  tvai  udvBDtB)(eou«  to  his  majesty's  sei> 
vice,  but  a  burden  tu  the  commonwealtJi;  this 
also  appenretli  by  the  last  Levy  nf  JHosey 
againtt  un  Act  of  VarUamrM.  Agtuu,  Ur. 
Speaker,  nhat  greater  proof  can  there  be  of 
(his,  than  tht  ieipr'aotaarnt  ofdweri  Gtntlcacn 
_for  the  Lmtn,  who  if  they  hud  done  the  con- 
trary for  fiear,  their  fiiult  bad  been  as  great  ili 
theirs  tlint  were  the  prnjoctori  in  it  ;  and  to- 
countenance  thpse  protwediiys,  hath  it  not  been 
preached  (or  rather  prated)  in  our  pulpiu,  that 
all  we  have  is  the  king's  Jure  Divina,  say  these 
limo-servcrs ;  they  fDcsake  their  oivn  fu net lun, 
and  turn  ignorant  sUieim en-:  we  see  liuw  wil- 
ling tliey  will  be  to  cliause  a  good  ci 
for  a  hisliopric  ;  and  M  r.  Speaker 

with  other 


61]        ffTATB  "IBIALS,  S  Cbaiim  I.  Hi29-8.— <fe  LOxris  tfihe  SOgtet.  [69 

Council,  ravHliing  at  once  rbo  spheres  of  lU 
ancient  EOTeniment,  impriloning  ui  aii/iout 
either  btnl  or  bond  ;  they  Imre  taken  From  ui, 
what?  What  «hall  I  hj  indeed,  what  linve 
tbev  left  (U?  All  mean*  ur  supplying  Ibe  kin;^ 
■nd  ;  ■  '   '■ 


;  hi*  aia}eM;r 
tboui,  andlugpeopl^m  their ettotei  at  home-, 
bat  will  ^u  knon  the  reason  of  all  this  t  Let 
ulmk  back  to-the  aciion)  of  former  princa, 
and  ve  dull  find  that  tboie  prince*  have  be«ii 
.iB|reiteat  want  and  eitremitj  that  macted 
moat  of  tbeirttibieccs,  and  niotC  unrominBte  in 
ibecboice  of  their  minitten,  and  to  have  foiled 
moa  in  [heir  andenakings  ;  happy  i»  ihtt 
pnwTtbat  haib  those  that  are  foitlifiil  ofhii 
CModL  That  nhich  hii  majesty  wanted  in 
die  manifcmeiit  of  his  afiairs  concerning 
Fmieeand  &»in,  I  am  clear,  was  his  want  of 
hitUal  cosncil  to  adiue :  the  reMOD  is  plain, 
a  uioce  ii  ttrongeit  by  faithtiil  and  iviBc  coun- 
cii  J  I  would  I  could  tnil]^  »y,  such  have  been 
tmplo^  abrtMid.  I  will  canfeu,  aod  Kill 
Aali  Ironi  mjr  heart,  he  is  no  |ood  sul^ect,  nor 
well  aSected  to  his  tnajest;  and  the  state',  that 
wiU  not  wiliio^j  and  frcdj  laj  don-n  his  life, 
wken  Che  end  may  he  the  service  of  his  majesty, 
and  (he  good  of  the  common-weal.  But  on 
the  contrary,  when  agajnit  a  parliament-law, 
■be  Subject  ahall  have  .taken  from  him  his 
mdi  against  his  will,  and  his  Liberty  gainst 
Ue  hwB  of  tbo  land ;  shall  it  be  accounted 
*ut  of  dn^  in  0*  to  stand  upon  our  privileges, 
bcicditary  to  ns,  and  conficnied  by  so  many 
act)  of  parliament  P — In  doing  this  we  shall  but 
(read,  ttw  steps  of  our  foi«fatheis,  vho  ever 
yefened  the  public  incernt  before  their  own 
B^  nay,  before  their  own  Uvea  ;  uur  can  it 
be  any  wrodg  to  his  majesty  to  stand  upon 
ikem,  so  a*  ibocby  we  may  be  the  better  ena- 
U«d  to  du  his  mqesty  service.  But  it  will  be 
«  wrang  lo  ua  and  our  potlerity,  and  our  con- 
•cwBoet,  if  we  willinjily  for^o  that  which  he- 
kojp  unu  HI  by  the  taw  of  Ood,  and  of  the 
'  iud,  and  this  wa  shall  do  well  to  ptesent  to 
iaiMJNty;  We  have  no  cause  tO  doubt  of  bis 
Mfotr'a  grodon^  acceptatic»). 

Sir  Tliomat  Wentwortk. 
TMs  debate  carries  a  double  aspect  towards 
tbesotercign  aod  tlie  subject;  though  both  be 
in«Keol,luth  are  injured  and  both  to  be  cured. 
Boelj,  intbegieatesChiHoiliCylspeak  it,  these 
■Uegal  ways  are  pDui&lunent  and  marks  of  indig' 
Hbon,  -l^t  rauing  of  Loam  strengthened  by 
crnininion,  with  unheard-of  instruction*  and 
eatbs;  the  billeting  of  soldiers  by  the  tieule- 
msu,  aad  deputy-lieu  teoants,  have  been  as  i1 
ibry  could  have  pcDoaded  christian  princrs, 
je»  worlds,  that  the  ri^tht  of  empires  had  been 
to  take  away  by  strong  hands,  and  ^y  have 
adMionred,  as  hr  as  possible  for  them,  to  do 
it.  Tfaisbathnot  becndoneby  theking(under 
tlv  nl easing  sbnde  of  whose  crown  I  hope  we 
riwlt  ewr  gather  the  fruits  oFjutticeJr  h"'  by 
pn^Ktors,  who  harecitcnded  the  prerogative 
of  the  kinE  beyond  the  just  symmetry,  whicli 
Dakctk  theiweet  banuony  of  the  whole:  they 
lave  brou^t  the  crown  into  greater  want  tlian 
~'er,  by  anticipating  the 


ingratiating  ourselves  with  liim,  taking  up 
itie  root  of  all  properly,  nhicb  if  it  be  not  sea- 
sonably set  a^aiu  into  the  ground  by  his  ma- 
jesty's own  hands,  we  shuU  have,  instead  of 
beauty,  baldness.  To  the  making  of  those 
whole,  I  shall  apply  myself,  and  propound  a 
remedy  to  all  these  diseases.  By  one  and  the 
same  thing  have  king  and  people  been  hurt, 
and  by  the  same  musX  t)iey  be  cured ;  to  vindi- 
cate, what,  new  thin^  ?  No,  our  ancient  vital 
liberties,  by  re-inforcmg  the  ancirnC  laws  made 
by  our  ancestors,  by  setting  forth  such  a  cha- 
racter of  them,  as  no  licentious  spirit  shnll  dare 
to  enter  upon  ihem.  And  shall  we  chink  this 
is  a  way  to  break  a  parliament?  No,  our  de- 
sires are  modest  and  just,  I  tpfak  truly,  hath 
for  the  interest  of  the  king  and  people ;  if  we 
enjoy  not  these,  it  will  he  impossible  for  us  to 
relieve  him. — TTiererore  let  us  never  fear  they 
shall  not  be  accepted  by  his  goodness;  where- 
fore I  shall  shortly  descend  to  my  motions,  . 
consisting  of  four  parts  ;  two  of  which  have  re- 
lation to  our  persons,  two  to  the  propriety  of 
goods.  For  our  Persons :  first,  the  freedom  of 
them  from  impHsonmuit:  secondly,  from  em- 
ployment abroad,  contrary  lo  the  ancient  cus- 
toms. For  our  goods,  that  no  Levies  be  made^ 
but  by  pBrtiameut;  secondly,  no  billetting  of 
Soldiers.  It  is  most  necessary  that  these  be 
resolved,  that  the  subject  may  be  secured  in. 
both. 

Sir  Benjamin  Rudyard. 
This  is  the  crisis  of  parliuments ;  we  shall 
know  by  this  if  parlinnionts  liee  or  die,  the 
king  will  be  valud  by  the  success  of  ui,  the 
counsels  of  this  house  will  have  operations  in 
_ii  :.:_  I.  __■._.■__.  1  -.  ir,jp5(y  begins  to  ■ 
tWhe  willrelj 
rvntion  is  natu- 
ral, we  are  not  now  on  the  bent  ette,  bttt  on  tbo 
me ;  be  sure  Ensland  is  ours,  and  then  pruna 
it.  Is  it  tio  smiill  matter  that  ne  hnve  pro- 
voked two  most  potent  kings?  We  have  united 
them,  and  have  betrayed  ourselves  more  tlian 
our  enemies  could.  Men  and  brethren,  what 
shdl  we  do  ?  I*  there  no  balm  in  Gilead  ?  If 
the  king  draw  one  way,  and  the  parliament 
another,  we  must  all  sIdL.  I  respect  no  par- 
ticular, I  am  not  to  wise  to  contemn  what  it 
determined  by  the. major  part;  one  day  tells 
■nnther,  and  one  patliaiaent  initruccs  vtother. 
I  desire  this  house  to  avoid  all  contestanons, 
the  hearty  of  kings  are  great,  it  is  comely  that 
kings  have  the  better  ol  their  subjects.  G^e 
the  krrg  leave  to  come  off;  I  believe  his  ma- 
jesty enpecLs  but  the  occasion.  It  is  InwAil, 
and  nur  duty  to  advise  hit  migesty,  hut  tbe 
way  is  Co  take  a  right  course  to  aCtain  the  right 
end  ;  which  I  think  may  he  tlius  :  by  trusting 

,    ,    ,. — „  — .  ,  —   —  I  the  king,  and  to  breed  a  trust  in  him;  by  giving 

•ba  shepherd  be  thus  sniitten,  sad  the  sheep  ■.  him  a  large  supply  according  to  his  wants,  by 
Mt  teutered  1    They  hare  introduced  a  Privy-  |  prostrating  om  ^nevances  humbly  at  hi*  fe«t, 


■m]  ffTATB'raiALS,  iCoAWul:  19XJ -i^—'Proeeediagt 61  IWbmmrO^ to  fH 
AxiJc  of  iMflding  wlut  M  mute  ?  iriU  ^m  Mt 


fern  dtence  they  viH  bave  the  ben  w^  to  faji 
Wwt,  thM  n  done  in  dui;  to  hia  m^eaj.  And 
I*  *ay  nil  at  snre,  l«t  m  all  laboiir  to  set  the 
kin*!  oil  oiv  uda,  nnd  t'lis  maj  be  no  hard 
tnaiter,  cotiiideHn^  ilie  near  subiuleDca  be- 
tween the  lung  and  people. 

Sir  Edward  Cokt. 
'  DuRi  lempus  liabemiis,  bniium  opere 
I  am  nbantately  for  e'^''"8  "  ^"PP'y  *' 
mnjesty ;  yet  with  some  cnuljoii.  To  tell 
you  of  Itireign  dnngprs  and  Inbred  evHs,  I 
will  not  do  it;  the  Slnte  is  inclining  to  a 
'  sUTDplion,  yet  nnt  incurable :  1  fear  not  Tureign 
enemies,  Go<(  seutt  119  peace  Rt  Imme :  for  this 
dii'eaie  1  will  prupoond  rcmcdieB,  J  will 
(eek  nothing  out  of  mine  own  head,  but  frum 
mj  heart,  and  out  of  aeis  of  parhtuneoC.  I  an 
not  able  to  6y  at  all  Grievances,  but  only  a 
Zoant.  IiFt  U)  hut  Butter  ounelves;  who  will 
give  Subsidies,  if  the  kine  may  impose  nhat  he 
will?  and  if,  after  parliament,  the  king'  n: 
iohance  what  he  pleascth^  I  knoA  ihe  ki  ^ 
nUK  not  do  it,  I  know  lie  is  a  religious  kin);, 
free  from  perwnaJ  vices;  but  he  deals  "ith 
other  men's  hands,  uid  sees  ntth  other  men's 
Cj'es.  Will  any  give  a  Subsidy  tliat  will  be 
taxed  aRer  piirfiHmeni  at  pteasore  ?  The  king 
cannot  ta«  oiiy  bj  way  of  Loans ;  1  differ  from 
them,  who  would  have  this  of  Loans  go  amongst 
-  Grievances,  but  I  wOkitJ  ha»e  it  go  alone, — I 
vitl  begin  n-ith  a  nobl«  Record,  it  chears  me  to 
(hink'Of  it,  3S  E.  3  ;  it'  is  worthy  to  be  written 
in  letters  of  gold  ;  Loantagatnit  tkewilli^'the 
Suljtct,  art  agaiiut  Rcaton,  aad  tie  Fraiichiiti 
i^the  land,  and  they  desire  rettituliiin :  what 
a  wont  is  that  Frmc/iut  ^  Tlie  lord  may  tax 
hi*  villein  hiyh  or  low,  but  it  is  against  the 
ftanehise*  of  the  land,  for  freemen  to  be  taxed 
tlut  bv  their  consent  in  parlinmenl,  Fratichiie 
a  a  French  word,  and  m  Lntiii  it  is  Liierfni. 
In  Maj-na  Charta  il  is  provided  that,  '  Nullus 
*  liber  humo  capialur  vel  imprisoiieiur  aut  dii- 
<  seisictur  de  libero  tenelnento,  sua,  Sic.  nisi 
'  per  legale  judicium  pariuio  suorum  vel  per 
'  U^em  terra  ;'  wliich  Charter  hath  been  con- 
firmed by  good  kings  above  thirtj  times. 

Wtwn  tbc*e  genthinea  had  spoken,  sir  John 
C«k,S«ci«E«ry  of  St»te,  took  up  the  matter 
tbr  the  king,  I  and  concluded  for  redreu  of  Griev 
anoot,  so  that  Supplies  take  the  precedency ; 
aadaidi 

Mr.  SemlatxC^ok. 

I  had  nitJwr  ytNi  woold  Iimr  any  thao  me ; 
I  -nil!  ilot  mnfwer  what  hath  been  alr^y 
qrabea;  my  intent  ifOM  to  Kif,  bat  to  quiet; 
Hot  10  provoke,  bnt  to  Ap.peaae :  ngy  dnire  is, 
tliit  evci^  one  resort  to  his  own  heart  to  re- 
■anite  t)t«  king  and  his  state,  snd  to  «ake  away 
tlte  scandal  ^m  us;-eT«iy  one  speaks  Jromihe 
abundance  of  Mf  heart;  I  do'cani^ude  out  of 
««ery  one's  ct>ndiuion,  to  give  to  the  king,  in 
Kdren-grieMuiccs;  dt' the dli^rence  i^  about 
the  manner.  We  alt  are  iahnbiMlits-in  one 
house,  the  Commoti'waaltli,  let  every  one  in  ^ 
'Winewhnt  amend  hi<tiouse>;kami;irhat  is. -imlss: 
>ntif  oiidM  bMiselw  on  £ib,«11I  we  then 


rather  qoench  tl>e  tiref  the  ikngerall  Mfn 
bend.  The  way  Uiat  iipropouadtd,  IiaekiK 
to  deohne.  Ilk^Icourws  hiMe  baen  tskea,  it 
must  be  confessed,  tlie  redress  mMt  be  by  ban 
and  punishment :  but  withal,  aitd  the  law  ef 
neoewity  ;  neoesaity  hath  no  hew,  you  amat 
abditate  the  state  t*  ris,  what  yoa  do  by  fiea- 
tioB  require.  Itis  wished  ne  begin  withGiier- 
ancte;  I  deny  not  that  we^ropare  then,  bat 
shall  we  offi>r  them  6nt  I  Wdl  not  tUt  aaen  a 
cottdilion  with  Us  majesty  i  Do  we  not  dail 
with  a  wise  king,  jealoua  of  hi*  httnoar  f  AH 
subiidics  cannot  ndTaatage  his  majosty  lo 
much,  as  that  hii  sittMects  do  «pmt  to  sop^y 
him;  this  will  amaie  the  eneiBT  botc  than  ten 
Subsiilies :  begin  therefare  with  the  king,  and 
not  wilt  ourselves. 

Sir  Roba-t  PkUlipt. 

This  day's  debate  makes  me  call  to  mind  the 
nustoni  of  the  Rnmans  who  had  a  Mlealii  feast 
onoe  a  year  for  their  slaves,  at  vAiioh  time  ttey 
had  liberty,  without  eiceptidn,  pi  sjMafc  what 
Ihsy  would,  wheKby  to  ease  thnr  efflioNd 
minds  ;  which  being  Miished,  tk^  aereraUy  re- 
turaed  to  their  former  servitutle.  Thi*  mafi, 
with  some  reseaiUaDCe  aad  diniaetian,  wtlt 
set  forth  our  pMsent  state;  whcm  now,  after 
the  revolution  of  some  time,  afid  grievtins  lof- 
ferings  of  maay  violent  oppreasiaBi,'We  haw, 
as'tfaose  daves  had,  a  day  of  liberty  of  tpMeh ; 
but  shall  not,  I  trust,  be  hnvin  slaves,  fhr  we 
nre'  free,  «e  are  not  bondmen,  but  sebjects : 
these,  after  their  feasts,  wera  alaves  again  ;  but 
it  is  our  hope  tu  return  li*emeo.  I  am  glad  to 
see  this  morning's  work,  to  see  sutJi  a  sense 
of  the  Griatfances  under  which  we  groan.  I 
seeaconcorrenoeof  grief  from  all  parts,  to  see 
the  Sul^ect  vrrongad,  and  a  fit  Way  to  sea  the 
Sukject  righted';  I  eipected  to  see  ft  division, 
but  I  sea  an  honourable  conjunotion,  and  I 
take  it  a  good  omen.  It  was  wished  by  one, 
ihat  there  were  a  fareetfulnes»  of  all ;  let  him 
not  profper  that  wishetb  it  not.  No,  there  is 
no  such  ways  to  perfect  remedy,  aa  Vb  forget 
injuries ;  but  not  90  to  for^,  as  not  to  recover 
them.  It  was  usual  in  Ban>e  to  bniy  all  inja- 
rieson  purjKxe  to  recover  diem.  It  was  said 
by  a  gentleman,  that  ever  speaks  frteiy,  '  We 
'  must  so  govern  ourselves,  aS  if  this  partiameiu 
■  nrast  be  the  crisis  of  allpartiatnents,  and  this 
'  is  the  last,'  I  hope  well,  and  there  will  be 
no  cause  for  the  kin^,  oar  head,  to  e«ce|>t 
asnimt  ns,  or  we  against  him.  The  dni^crs 
abroadan>preaentedU)us;heisnoBiigiiihmkn 
that  is  not  apprehensive  of  them. 

We  have  pfovolccd  two  potent  kings  (the  one 
too  near,  wtio  are  too  Hroogly  joined  toeethar ; 
t'cfaimeriral,  butretJ,  I  nc- 
mun  be  done  in  proportien 
lt(  our  dangers  at  home :  I  more  fear  tb^  vio- 
latioo'of  public  Rights  at  home,  than  a  tnreigii 
enemy.  A&st  ir  he  our  duties  and  direction  to 
defend  fsreign  itnngers,  and  establish  security 
against  tbem,  and  shall  we  not'  leok  at-tlmt 
which  aMI  ttMke  M  abkasd  wiiUag  U 


the  dangers  n 


651 


STATE  TftlALS.  S  Craklu  I.  IGT^-i.—Oe  UberiytflheSidifKi.  [6G 

that  Nflcesihjr  is  on  aroied  mui,  and  ihai  Ne- 
caaitj  a  an  ctiI  Counwdkir,  I  would  wa  ImiiI 


tai  WethaU  nnt  omit  to  coofide  and  trust 
iu  au^mlj,  otbcrwiie  our  c>nii>ieli  vrill  ba  with 
fean,  and  [iiai  becomes  not  Englitlmtca.  The 
auacctutoned  vinteiKei.  I  bare  QotLiiig  but  a 
ggod  meaoiDK,  trencb  into  ail  nt  hate.  To 
(he  four  Faniculars  already  mcDtioned,  i{>here- 
ia  «(  suSirr,  ooe  more  may  be  added,  last  Cod 
fcctieat  10  Itear  me  in  the  day  of  mj  iruubla  ; 
sur  Keligion  ia  made  vendible  by  Cumnlissioii* : 
»)ttl  DOW  a  toleration  is  iranted  (litile  iau), 
■nd  men  lot  oecDniary  annual  rates  di4]>eiiscd 
■itiiid,  wbereliy  Papiiu,  without  fear  of  law, 
practiK  idoJaCi-j,  and  scoff  at  parliamtnu,  at 
IiM,  Slid  all.  It  is  nell  knuwD,  the  people  of 
diii  itatE  are  under  no  oLber  sabjeotion,  than 
■hit  they  did  voluntarily  consent  unto,  by  the 
oii|i[ial  contract  between  kiai;  and  people ; 
aad  ai  ibere  are  many  prerogaLivei  and  priii- 
kges  cooferred  on  liw  kiog,  eo  Ibera  are  left  to 
lot  Sobject  many  necessary  liberties  and  Pri- 
Tiirgai,  M  appears  by  tbe  comnon  laws  and 
act!  of  parliaiiieDI,  nolwithstAnding  what  tjiese 
twi)  Sycophants,  Sibthorp  and  Man  waring, 
bare  praUd  in  the  pulpit  to  tbe  contrary.  Was 
there  ever  yet  king  of  England  that  directly 
Tiolued  the  Subjects  Liberty  and  Property,  but 
ihnr  actiosa  were  ever  complained  of  in  par- 
liunent,  and  do  sooner  complained  of  than  re-. 
ikeisedP  VI  £,  3,  there  went  out  a  Commis- 
4  raise  nancy  in  a  strange  manner;   the 


fitroe  of  that  was,  kwk  into  the  atatut*  of  K.  0, 
•ikich  daianed  that  p&iticillar  way,  and  all  other 
iadirea  ways. 

Since  the  Kj^bt  of  the  Subject  is  thus  bul- 
warked by  the  law  of^e  kingdom,  and  princes 
upon  complaint  bfie  redresKd  them,  I  uni 
cnnlideBt  ire  shall  have  the  li^  cause  of  joy 
faim  bit  majeaty. 

I  will  here  make  a  little  digression  :  tbe 
oanlf ,  ^meiieishire,  I  Hne  for,  were  jileastd 
to  coinniand  me  lo  seek  the  removal  from 
Ihem  ol  the  greatest  burthen  ihat  ever  people 
laSered.  It  won  excellently  siiid,  C^immTs- 
maaiy  Lieutenants  do  deprive  us  of  nil  liber- 
ty ;  if  ever  tlte  like  was  wen  'of  tbe  tieuteniulcy 
iWl  DOW  is,  I  will  neverbe  beheved  mure: 
they  tell  the  people  ~tlicy  must  pay  so  much 
BpoD  wanvQt  from  a  Deputy- Li  en  tenant.  Or  be 
bound  to  tne  pMd  behaviour,  and  sent  up  tn 
iheLordi  of. the  Council;  it  is  the  stranee^t 
«a|ine  to  rend  the  libcriv  of  the  lut^ect  thAl 
eierwas:  there  is  now  a  Decemviri  in  every 
manqp,  and  omongii  that  Decemviri,  there  is 
SMae  Clnudius  Appiui  tluil  se«k  their  own  re- 
veuies.  We  mifiplxiti  of  Loans  and  Impoii- 
tioM,  bat  when  Oepuiv -Lieutenants  may  hcnil 
Warrants  to  imprison  oar  |)er«ons  at  pleasure; 
Jtwe  pay  not  nh.il  they  ^ent  tor,  it  concerns  ut 
to  p;eierve  tbe  country  in  freedom,  and  to  con- 
nkr  of  (tua  kind  of  people.^  There  is  now  Ne- 
CMity  brought  in  for  an  argUDMUtj  all  know 
TOU  III. 


never  known  that  counsel;  we  ere  almost 
grown  like  the  Turks,  who  send  their  Janiza- 
ries, who  place  the  hstbert  at  the  door,  and 
there  he  is  master  of  the  house.  We  I'pve  S^ 
diers  billetted,  and  Warrants  to  collect  money, 
which  if  they  do  not,  the  soldiers  muvt  cuma 
and  rifle.  The  Romans  sending  one  into  Spain, 
found  DO  greater  complaint,  than  the  di^icoD- 
(ent  that  diJ  arise,  from  soldiers  placed  aDiongtt 
them.  I  would  you  would  look  into  Tortescoe, 
where  be  puts  tbe  prince  in  mind,  what  misenr 
be  saw,  wDere  soldier*  were  put  upon  the  peo' 
pie :  Imt,  siuth  he,  no  man  is  forced  to  take 
Soldiers  but  lun^,  and  they  are  to  be  paid  by 
(hem.  1  desire  we  resort  to  bis'mnjesty  for 
redress,  and  to  rtduce  all  into  bound). 

The  oilier  way  of  Grievance  is  a  Judgmmt 
in  a  legal  course  of  proceeding;  we  have  had 
three  Judgraents  of  late  tinies,  all  eiceedirfg 
one  another  in  prejudice  of  the  subject:  tha 
first  wat,  that  which  was  judged  in  all  tbrtnalitj, 
the  Postnati,  Scots,  caae,  "  which  people  I 
honour;  for  we  find  many  of  them  lore  us  more 
than  we  do  ourselves ;  1  do  not  com[^)n  of  it. 

Tire  other  Judgment  was  for  Impositions,  t 
which  was  given  in  the  Exchequer,  and  this 
house  twice  afterwards  datnned  tliU Judgment: 
how  remiss  our  eyes  ate  upon  that  1  grievo 

There  is  a  Judgment,  if  I  may  so  call  it,  a 
fatal  Judgment  aguinst  the  Liberty  of  the  Sub- 
ject, Mich.  3  Cur.  in  sir  Jnbn  Heveoinehauf'i 
Case,  Bi^ued  at  the  bar,  and  pronounced  but  by 
otie  alone.  I  can  live«ltbough  another  witbbut 
title  be  pat  to  live  »il1i  lae  ;  nay,  I  can  live, 
altbouah  I  pny  I'.ncises  and  Impi'sition^  for 
more  than  I  dr  ;  but  to  hat'e  my  Liberty,  which 
is  the  jiou]  of  my  lire,  tukeu  from  me  by  pi»  ~  ~ 


gnoi;  O  improvident  nnce.»iorsT  Oui 
fathers  I  to  be  so  curious  ia  providing  tb^  the 
quiet  possession  of  our  Innds  snd  liberties  of 
pnrliament,  and  to  neglect  our  penons  and 
bodies,  and  to  let  them  die  in  pnsi>n,  and  that 
dttrUTii*  bene  ptaeita,  remediless.  If  this  b« 
law,  what  da  we  tnik  of  our  Liberties?  Why 
do  we  troulile  ourselves  with  tbe  dispute  of 
Law,  Fraiicliisea,  Propriety  of  Gnods?  It  la  the 
tamma  iotal'a  of  all  miaenrs ;  i  will  not  say  it 
was  erroneous,  but  I  hope  «o  shall  speak  our 
minds,  when  that  Judgment  comes  here  to  be 
debated.  What  may  a  man  call  thii  ?  if  not 
liberty.  Having  paiUed  in  some  confusion  in 
the  tiishion  of  my  delivery,  I  conclude :  we  will 
cun'ider  two  purticulars,  his  Majesty,  end  bis 
People.  His  Mujeaiy  culls  to  us,  mid  crsnes  onr 
assistance  to  revive  again  his  honour,  and  the 
hunnuroflhe  naliun:  the  People  send  us,  as 
tie  tope,  with  that  directii'o,  tlut  we  shall  re- 
turn to  them  with  that  olive  bninch,  tli.it  nssu- 
rauce  of  being  freefitnn  tliose  palumitlrs,  niider 


'  See  ■vol.  Ji,  p.  559.         t  I*'''*-  P-  *'  I- 


C7]    ^ATE  TBIALS,  SCajM^  I.  iQ28.^Proeeediags  in  Pariiaiaeianlatiiig  la    [66 


wtuch  ihey  ciq  hardly  breathe.  Qui  sins  ba*e 
brought  on  lu  those  aiiseriei,  ki  U9  all  bring 
bur  portion  to  muLe  up  ilie  wall:  we  come 
with  loyal  beaitt;  liii  inajtsty  al>->ll  &nd,  thai 
it  is  we  tliat  are  his  liiiihlul  cnuiiscllors ;  Jet  nil 
(yofhauis  he  fur  renioied  from  liia  majesty, 
since  wp  cannoi  helgihis  majesty  Hithoui  open- 
ii^t  our  Grieviinct'S:  IpI  dh  diii'hariie  onr duties 
■Ili^reiD :  yt  while  we  seek  Uberiy,  we  will  not 
forget  subjection.  Al\  tilings  a  *ta!e  can  be 
capable  of,  either  blessings  or  punishments, 
depend  OD  this  nieeting:  if  any  ibink  ibe  kinK 
may  be  supplied,  and  ttie  camnionneiiltli  pre- 
served without  redrea  of  (>rieTant»a,  he  is  de- 
ceived, 'liie  kinKS  of  Edflaiid  were  nerer 
mure  glorioas  tliaii  when  ibey  trusted  their 
Bubjecls :  let  us  nhke  ill  haste  to  do  ijie  errand 
for  which  weAime;  let  the  bouse  cousi'ler  to 
prepare  our  Grievances  lit  fur  bis  mujesty's 
view,  not  to  make  a  law  to  give  us  new  hbet- 
ties,  but  declaratory,  witli  respective  penalties ; 
so  that  those  which  violate  them,  if  (bey  nould 
be  vile,  they  should  fear  Infamy  wiib  mpn;  and 
iJien  we  shall  ihiuk  of  s.uch  a  Supply  hs  never 
priace  received,  and  with  our  money  we  shall 
give  him  our  lieorir,  and  give  him  a  new  people 
raUed  froio  the  deud :  then  I  hope  this  parlia- 
ment will  be  entitled,  '  The  Purliiuuenl  uf 
*  Wondera,'  and  God'a  Judgments  diverted,  and 
these  hpanis  of  Koodness  shall  give  at  life,  and 
we  bbol^  g"  luHne  to  our  o»u  couLitries,  and 
leave  our  posterities  as  free  us 
left  us. 


Monday,  34  March.  Secretary  Conk  re- 
newed the  motion  of  Supplies  fi>r  bis  oiBJesly, 
yet  50,  that  Grievanoe!,  be  likewise  taken  into 
consideratioo.  Then  lie  mude  a  meiiuu, 
"  That  the  same  Committee  taaj  bear  Pro|>i»i- 
tions  of  general  headi  of  Supply,  and  after- 
wards e*)  lo  otlicr  busiiiesie^  of  the  day  for 
Grievances."  Others  preferred  the  considera- 
tipn  of  Grievances,  ns  a  particular  mot  that 
invaded  ttie  main  Liberty  of  ihe  Sulyect.  It  is 
the  law  (said  they),  that  glorious  lundnmental 
llighC,  whereby  we  have  power  tnt;ivei  we 
desire  but  that  his  majesty  may  see  us  hnve  that 
right  therein,  which,  next  to  God,  we  iiU  desirej 
Biid  then  we  doubt  nut,  but  we  shut!  ^ive  bis 
majeily  nil  supply  we  can.  The  time  was, 
when  it  WHS  usual  to  desire  favours  fur  sowing 
of  discords,  aii  Gonilomar  did  for  Raleigh's 
head.  But  the  debates  of  (his  day  came  to  jio 
Bi' solution. 

The  day  rnl!owina,heing  the  25th,  Mr.  Secre- 
tary Cook  tendered  the  Iwuse  certain  Pmpo^i- 
tious  from  the  king,  touching  Supply  ;  and  told 
tliani,  That  his  majesty,  finding  time  precious, 
expects  that  (hey  should  bcuii  speedily,  leit 
they  spend  that  time  in  dehberaiiou,  which 
■huuld  be  spent  in  action  :  that  he  esieenis  the 

not  on  pri  cedents  in  point  of  honour.  There- 
fore, ta  satisfy  his  luajeMv,  let  the  same  Lum- 
nittee  take.bis  majesty's  f  roposiciuneinio  cod- 


liderolion,  and  let  both  concur,  whether  to  sit  ' 
on  one  in  ibe  foreoocin,  or  ihe  other  iti  tbe 
alteruoon,  it  b  all  one  to  his  majesty. — Here- 
upon the  liouse  turned  themselves  into  aComr 
ittee,  and  coounanded  £klward  Liuletun,  esq. 
itu  tike  chair,  and  ordered  the  Committee  to 
take  into  consideration  the  Liberty  of  the  Sub- 
ject, in  hisPenon,  B>.d  inhisGoodti  and  also  to 
take  into  conwderation  his  majesty's  .Supply. 
In  this  Debate  the  Grievances  were  reduced  to 
pii  beads,  as  to  our  Penolts. 

1.  Attendance  at  the  Cuuncil-boM^.  S. 
Imprisonment.  3.  Confinement.  4.  Desig- 
nation for  foreign  Employment.  5-  Martial 
Law.  6.  Undue  Proceetlings  in  matter  M' J  a- 
dicatnre. 

The  first  matter  debated,  was  the  Subject's 
Liberty  in  his  Person:  the  particular  instance 
was  in  the  case  of  sit  JobaJleveningham,  and 
those  other  gentlemen  who  were  imprisoned 
about  Loon-money,  and  thereupon  had  brounht 
their  Habeas  Corpus,  had  their  Case  argued, 
and  were  nevertlieles  remanded  to  prison,  and 
a  Judgment,  as  it  was  then  said,  wai  entered. 
Then  .Sir  Edmard  Coke  spoke  as  follows, 

Itistme,  that  the  king's  Prerogative  is  apart 
or  the  law  oftliii  kingdom,  and  a  supreme  part, 
for  the  prerogative  is  highly  tendered  andres- 
pected  of  the  law  ;  yet  it  hath  bounds  set  unto 
it  by  tlie  laws  of  England.  Out  some  worth^T 
metnbers  of  this  house  have  spoken  of  foreigu 
states,  which  I  -conceive  to  be  a  fbreien  speech, 
and  not  able  to  weaken  the  side  I  shall  maia- 

That  Mr.  Attorney  (sir  Robert  Healh)  ai»j 
hare  soniething  to  answer  uuto,  I  will  speak, 
»itbout  taking  another  day,  to  tbc  body  of 
the  cause,  yet  keeping  something  in  store  for 
another  time.  I  have  nut  my  Vade  eiectim  here, 
yet  I  will  endeavour  to  recite  my  aucliuritiea 
truly  1  I  shall  begin  with  an  old  authority,  far 
'  Errorem  ad   sua  principia  refarre,  e^t  ref(J- 

The  ground  of  iMa  error  was  the  Sutute  of 
West.  1,  cap.  15,  which  saitli,  '  That  those  are 

'  not  repleviuble,  who  are  couimiitud  tin'  tlie 
'  death  of  a  man,  ur  by  the  commandment 
'  of  the  king,  or  his  justices,  or  fnr  the  forest', 
(for  so  it  wns  cited:}  and  Stamford  72,  ei- 
pouoded  hereof,  the  '  cuniraaudment  oj'  tbc 
'  kin^'  to  he  the  commandmcut  of  the  king's 
mouth,  or  of  his  council :  but  it  is  clear  that  by 
prtrepiam  is  understood  the  commandment  of 
the  Justices  of  the  Kiivg's  bench,  and. Coiumiut- 
Fleos:  and  lliis  is  '  cmitempotanea  expoiiitio, 
'  qus  est  lortissim.i  in  lege.' 

To  tliis  purpose  vide  Wcstm.  1.  cap.  9,  the 
Book  of  sh.  Q.  item,  cap.  !Si,dtmale/actoribu» 
in  pair,  the  Book  oft)  H.  4,  5,  item,  35,  36,  S9, 
c.  ijuidem  ttaltili,  whereby  it  may  appear 
(hat  the  commandment  here  spoken  ot  lo 
be  the  conimaiidmeut  uf  the  king,  is  his  com- 
mamfment  by  the  Judges,  '  PrKceptum  Do- 
'  mini  Hegis  in  Curia,  non-in  Camera.'  So 
it  is  likewise  token  1  R.  S,  ct^.  IS,  in  a  Statute 
made  ia  tha  ueit  king's  rei^,  and  exptesdji  ia 


«91 


STATE  TRIAI^,  3  Chables  I.  16S8.~'~iie  Libaiy  qftHe  Subject. 


Dm,  hi  1G2.  i  50.  M  fbl.  194.  ^.  S4.  Shdl 
I  nither  proTC  it  b;  QMtter  of  Record  ?  '  Fac 
•  hoc  et  ines :'  it  is  18  E.  3,  Rot,  33  cotBin 
Kegt,  John  BilMoD'i  Cass  :  who  being cammit- 
Eed  sad  detained  in  prisoa  by  the  coniTniuid- 
~  '  of  tlie  king,  wni  discharged  bj  Habeas 
■  eu  quod  breve  doDtici  regis  uon  Tuit 


.'wilhf.ieina 


AUtbe 

liooaredirecttollie point, Bnd  oJsothe  16H.6, 
Brooke  and  Uttletiiii,  9,  6,  laoDstniis  de  I'ait 
18S,  per  Cur.  The  king  canuut  command  « 
man  lo  be  Hrrested  in  his  presence  :  tbe  king 
aa  arrest  no  man,  because  there  it  no  remedy 
ipiiuihiiD,  I  H.  7,4,  like\fiBe^r«rficl.  ilat. 
c  IS,  the  kin^'*  pleasure  is  not  binding  without 
tkaaNeotol' the  realm, 

I  never  read  an;  opinion  against  what. I  have 
aid,  but  that  of  Stamford,  mistaken  (ns  you 
KC)  in  tbe  ground  :  yet  I  Say  not  ihat  a  man 
aij  not  be  committed  witliout  precise  shewing 
(because  in  partienlar;  for  it  is  suiHcieot  if  tbe 
OHM  in  eeneral  be  shewed,  as  Tor  Treason,  &c. 
1 E.  i,  list.  dijTMn  genJ.  pruon.  nutlut  habtat 
jtJuiitM,  &c.  there  tbe  cause  of  imprisoDment 
nut  be  known,  else  [be  statute  will  be  of  little 
foite;  tbe  words  thenofdu  plainly  dentoDstrale 
ilieiot«ntofthestatutelobeacoordiBf;ly.  Iwill 
toadude  with.tbe  hiebest  authority,  tbnt  is,  35- 
tbtp.  of  the  Act*  of  the  Apostles,  the  last  verse, 
when  Sl  Paul  saitb, '  It  is  against  reason  to  send 
'  a  man  to  prison  witliout  shewing  »  cause.' — 
Tiat,  Jdr.  Atiomej,  according  to  the  rules  of 
phfuc,  1  bare  given  jou  a  preparatiTe,  which 
■loth  precode  a  purge.      1  have,  much  mom  in 

Mr.  Creumtll. 
I  Etand  up  to  speak  somewhat  coDcerniog  the 
fmn  of  tbe  lohject*  grievances  by  impnsoo- 
tmt  of  their  persons  without  an;r  declaration 
«f  the  caose,  contrary  unto,  and  in  derogation 
o(>be  fandamental  laws  and  Lberties  lif  this 

*  "  I  rise  not  to  make  an  oignment  in  this 
IKiist,  the  greateat  thai  aver  was  in  this  place, 
Kcliewhere.  This  liberty,  which  all  men,  us 
•rll  lawyers  as  others,  believe,  as  I  hope,  hath 
been  ciolated,  though  not  without  complaiiit : 
bit  eiccpt  ill  this  late  course,  I  am  confident, 
VIS  never  adjudged  before.  The  Habeas  Corpus 
■M  brought,  the  cause  irat  returned  by  com- 
lund  of  uie  king,  intimated  by  the  lords  of  the 
eoaocii;  Argomeot  was  mode;  seven  acts  of 
pwhsment  wero  menriaDed,and  all  were  passed 
oier,  and  only  commended  ;  and  upon  that  a 
peclaration  of  Judgment  was  giveu,*nd  to  ad- 
judged;  *  That  upon  any  commitment  by  the 
'  king  or  the  council,  no  enlargement  can  be.' 
I  ever  observed,  in  any  great  cause,  solemn  or- 
•nments  used  ta  be  made.  We  see  his  majesty 
ud  his  conocil  are  hath  interested  in  ibis.  I 
'a  desire  that  some  of  the  king's  counsel  may 
■peak  what  theycan  to  satisfy  us  of  this  great 
powsr."  MSS.  Pymmii  apud  viruni  honoratum 
Tbomatn  Hales  baroneltum.  See  Seldco's  Life 
in  bij  Works,  vol.  I,  p.  13. 


[TO 

kingdom.  I  think  I  am  one  oC  tbe  Puisnes  of 
our  profession,  which  are  of  the  members  uf 
this  house ;  but  howsoever  sure  T  am  in  tliat 
respect  of  my  owtl  iiiabilities,  1  am  the  Puisn» 
of  all  the  whale  house ;  thoelbre,  according  to 
(be  usual  cuurse  of  iiudi^nts  in  oui  profession,  I 
(as  tbe  Puisne)  speak  first  in  time,  because  I 
can  speak  lea^t  in  matter. 

In  pursuance  of  which  course  I  shall  rather 

tut  the  case  than  argue  it:  and  therefore  I  shall 
umbl^  desire  hrst  of  all,  of  this  biiiiourabla 
huu4«  in  general,  tliat  tbe  goodness  of  the  causa 
may  receive  no  prejudice  by  the  wealneu  of 
my  argument;  and  next  of  all,  of  my  master! 
bet«  of  the  same  profe^iiun  in  particular,  that 
they  bv  their  learned  judi^ments  will  supply  tlie 
great  defects  I  shall  discover  by  dacloring  of  mj 
unlearned  opinion.. 

Btfore,!  speak  ofthe  question,  pve  me  leave, 
as  an  eoirance  thereunto,  to  speak  brst  of  the 
occasiuu.  You  ■bHll  know,  Jostice  is  the  life 
and  the  heart's  blo'KJ  of  tlie  commonwealth; 
and  if  the  commonweaUh  bleeil  in  the  master- 
vein,  all  thcbalm  in  Uilead  is  but  in  vain  to  pra- 
scrve  this  our  body  of  pubty  from  ruin  and  de- 
structiiin.  Justice  is  botli '  coluimiaet corona 
'  reipublicB,'  she  is  both  th«  column  and  tite 
pillar,  the  crown  and  the  glory  of  the  common- 
wealth. This  ii  made  guud  in  Scripture  by  the 
judgment  of  Solomon,  ihe  wisest  king  that  eter 
reigued  on  earth.  Fur  1,  she  It  tbe  pillar ;  for 
he  ssith,  that  bv  Justice  the  throne  shall  be  es- 
tablished ;  S,  she  is  tbe  crown ;  for  he  saitb, 
that  by  Justice  a  nation  ii  exalted .-~^Utir  lawa, 
which  are  the  rules  of  this  Justit^e,  they  Hre  the 
ne  plia  uUra  to  hoiti  the  king  and  tiie  subject ; 
and  as  ibcy  are  the  Hercules'  pillar,  sii  are  thej 
ttie  pillar  to  every-Hercules,  to  every  prinee, 
which  be  must  not  pass.  Give  lift  leave  to  re- 
semble ber  to  Nebuchadnezzar's  tree  :  fur  she 
is  so  great,  that  she  doth  shade  nut  only  the 
pniace  of  the  king,  and  the  house  of  (be  nobles, 
but  doih  also  ihelter  the  cottage  of  tbe  poorest 

Wl>erefore,  if  either  now  tlie  blasts  of  indig- 
nation, or  tha  unresistable  violator  of  laws,  ne- 
cessity, hath  su  bruised  any  of  the  branches  of 
thia  tree,  that  either  our  persons,  or  goods,  or 
posiessiuns  have  not  the  same  slielter  as  before; 
yet  let  us  nut  therefore  neglect  the  mot  of  (hi* 
great  tree,  but  rather  with  all  our  possible  en- 
deavonr  niid  unfeigned  duty,  both  apply  fresh 
and  fertile  mould  unto  it,  and  also  water  it  even' 
with  our  own  tearf,  (bat  so  these  bruised 
branches  may  he  recovered,  and  tbe  whole  tree 
again  prosper  and  fluurisli.  For  this  I  have 
learned  from  an  ancient  Father  of  the  Church, 
that  ihouph  '  preces  reguni  sunt  annats ,'  yet 
'  urma  sobdituruin '  are  but  only  ■  preces  et  la- 

Iknow  well  that '  corregisinscnitabile;'  and 
that  kings.  althtiutLb  thej  are  but  men  befiire 
God,  yet  are  they  Gods  before  men.  And  there- 
fore to  my  gracious  and  dread  sovereign,  (whoie 
virtues  ore  true  qujlitiet  ingcneratc  both  in  his 
judgment  and  nature)  let  my  arm  be  cut  off, 
nay,  let  my  soul  not  Ure  that  day,  that  I  shall 


71]    STATE  TRIALS,  3  ChaklmI.  lfieB.—J^«c(witB«i  »  P«rl««««i  rearing  to   [19 

iterwKHf  accept  aTcmed;;  for tbc  law  ht^a 

B  dumngen  »unici«Dt  recompeuc 


dare  to  lift  up  mj  ann  to  touch  that  forbidden 
tniic,  (bose  Mowen  uf  his  princel;  crown  mid 

But  /et  in  our  Eden,  in  thia  j^rden  of  (be 
cvminomvEnlth,  as  there  are  the  Jimeert  aj  thr 
lUK,  nhich  are  so  glurious  Ctiat  they  are  t'>  be 
bandied  only  by  tojmI  majcaiy ;  so  b«;  tliere 
b1»>  siinie  daisies  and  Kbulesoiiie  herbs,  wliicii 
ttcrj  ciuiuDon  b&nd  tliat  lii-es  and  labours  in 
this  Kt")eD  may  pick  and  gather  up,  and  take 
comfort  and  repose  in  ihsm.  AmoiiEit  all 
which  tbis  ocuJu  diet,  this  bona  Ubertai  it  one, 
tttd  the  chief  one. 

Tiius  moch  in  all  humbleneM  I  prcranw  to 

rik  for  the  occasion.  I  will  now  descend  lo 
qnestion  ;  wherein  1  hold,  (wilh  all  dutiful 
aubmtsaiou  la  better  judgments)  ihnt  iheee  acts 
of  puvteriti  impritKitiiiig  and  coiltining  of  his  ma- 
jetty's  subjects  ill  such  mfinner,  withtnit  any  de- 
chiruti')n  of  the  cause,  are  against  the  funda- 
mental laws  and  liberties  of  this  kingdom. 

And  tbr  these  ceawns  thus  briefly  drawn,  I 
C«ndud«, 

1.  1  bt  first,  from  the  great  farour  which  tlie- 
law  doth  gii«  <.n[(i,  ni>d  the  great  care  which  it 
halh  ever  taken  of  the  libtrt*  and  sat'etv  of  ihig 
kiugdom.  I  should  not  nicd  to  take  Che  qnrs- 
I  (ion  in  pieces,  nor  handle  il  in  paits  dividedlv, 
hut  irone  entire  ;  because  I  Uild  nu  other  dif- 
ference between  Imprijonment  and  Coiilinr- 
meiit  than  ontj'tliis,  that  one  hath  a  less  and 
■traiter,  the  other  a  greater  and  larger  prison. 
And  this  word  Cuufiiienieiit  not  being  to  be 
ftonrt  in  anv_  ooe  case  of  our  law,  if  therefore  it 
Is  becunie  the  language  ufstiile,  it  i*  too  difficult 


o  define 


To  proceed  therefore  in  maintenance  of  ray 
fir«  reason  ;  i  find  our  law  dotli  so  much  favour 
the  Subject'!'  LJberiy  of  hia  pervin,  that  the 
body  of  ainan  was  not  lifthle  to  be  arrested  or 
Imprisoned  for  any  other  cause  at  the  common- 
law,  but  for  force,  and  things.done  against  the 


r  of  the  land)  so  abborreth 
those  that  commit  it  she  accounts  her  capital 
memies,  and  i  here  Fore  il  id  subject  their  bodies 
to  imprisonment.  But  by  the  statute  of  Marie- 
bridge,  Cap.  94,  which  was  made  35  H.  3,  who 
was  the  eighth  king  from  the  Conquest,  because 
bailiffs  would  not  render  accomits  to  their  lords, 
It  w»s  enacTed,  that  their  bodies  should  be  nt- 
.  tachcd :  And  afterwards  by  the  Statute  33  Ed. 
8,  IT.  who  was  the  eleventh  king  arier  the  Con- 

Esi,  because  men  made  no  conscience  to  pay 
tr  debts;  it  was  eoacteil,  that  their  bodies 
ihould  likeniie  be  aitachcd  :  But  befoK  those 
•Utntes  no  man'5  body  was  subject  to  be  taken 
nr  imprisoned  otherwise  than  as  aforesaid. 
Whereby  it  is  e.ident,  how  much  the  comrann- 
luw  fuvoi'red  the  Liberty  of  the  Subject,  anil 
protected  his  body  from  imprisonment. 

1  win  in  o  re  tiie  reason  further  by  a  rule  in 
hw,  and  t<inie  cases  in  law  upon  that  rule. 
lliernlpistliisThat '  Corporal  is  in  lurin  non  re* 
'  ci[jite9limaiionem fefuturo;'  Soasiftheijucfr- 
tion  be  not  for  a  wrong  done  to  t^ie  person,  the 
taw   will  not  compel  Um  lo  sustain  it,  and 


..'hich  is  corporal. 

The  CBSM  in  law  to  prove  this,  shall  be  these. 
If  one  menace  roe  in  my  goods,  or  that  he  will 
burn  the  erideoce  of  my  l-md  which  be  hath  m 
his  custody,  ualew  1  make  unto  him'  a  bond : 
there  I  cannot  avoid  the  bond,  by  pleading  at 
thiainenace.  But  if  he  restraiiii  my  pcrvm,  or 
threatens  me  with  batlety,  or  with  burning  mf 
house,  which  is  a  protectioa  for  my  pciaon,  oc 
with  burning  an  initrum«it  of  manumibMon, 
which  is  an  evidence  of  my  cnfranchiseiiieDl ; 
upon  these  menacM  or  dares,  I  shall  avaid  tba 
bond  by  plea. 

So  if  a  trespasBM  drives  my  beast  ov«r  an- 
other man's  ground,  and  I  punue  to  reacue  it} 
there  I  am  a  trespasser  to  him  od  w  hose  growd 
I  am.  But  if  a  man  assault  my  person,  and  I 
for  mj  safely  fly  over  into  another  man's 
ground,  there  I  am  no  trespasser  to  him,  fiir, 
>  QauA  quis  in  tuitione  sui  corporis  feccrit, 
'  jtire  id  fecisse  exist imatar.*- 

Nay,  wbich  is  more,  the  Common-law  did 
ftivoDr  the  Liberty  not  only  of  Freemen,  bnt 
even  of  the  persons  of  bondmen,  and  villeint, 
.who  hftv  no  ppnpriety  either  in  lands  or  goods, 
HS  fn>emen  have ;  and  therefore  by  the  law,  the 
lonl  could  not  ra»im  his  villein;  nay,  if  the 
lord  coranwnded  anotlier  to  beat  his  villdn, 
ahd  he  did  it,  the  vitleio  should  have  his  action 
of  battery  agMnst  hiui  for  it. — If  the  lord  matle 
a  lease  for  years  to  his  villein,  if  he  did  plead 
with  Ns  villein,  if  he  tendered  his  villein  to  be 
champion  for  him  in  a  writ  of  ritht;  anyof 
those  acts,  and  manv  other,  which  I  omit,  were 
in  law  enfrauchiseiuents,  aad  made  ihesa  »il- 
leiM  freemen.  Nay,  in  a  suit  brought  against 
one,  if  he  by  attorney  will  plead  that  he  ia  » 
villein,  the  law  is  so  cafvflil  of  tteedom,  that  it 
disallows  this  plea  by  attorney,  but  be  must  do 
itpmflriopeFTiMW,  because  it  binds  his  posteritr 
and  blood  lo  the  viUein's  also.  And  thus  much 
in  the  general  for  my  first  retaon. 

a.  My  next  reason  is  drawn  by  an  omiment 
i  mafan  ad  minui !  I  frame  it  thus :  Iftbekii^ 
have  no  absolute  power  over  our  lands  or 
poods,  then  H  J'M-tityri  not  orer  our  persons,  to 
imprison  them  withutit  declaring  the  cause,  fijr 
our  persons  are  much  'more  worth  than  either 
lands,  or  goods  ;  -which  is  proved  by  what  I. 
have  said  already,  and  Christ  himself  makes  it 
clear,  irtiere  he  saith,  '  An  non  est  corpus  supra 
■  vestimentnm  f  Is  not  the  body  of  more  noith 
than  the  rahnent?  Where  the  Canonists  say, 
that  vatimtntiim  coroprehendeth  all  outward 
ihingt  which  are  not  in  the  same  degree  with 
that  which  is  corporal.  And  our  law  maketb 
it  nISD  plain;  for  if  a  villein  purchaseth  frank- 
land,  this  makes  it  villein-land  according  to  tba 
nature  of  his  person  ;  but  it  holds  not  i  cin»> 
vena,  frank-land  shall  not  free  the  person. 
Now  that  the  king  hath  no  absolute  pow«r 
either  over  our  lands  or  goods,  I  "ill  only  at 
this  time  but  put  a  case  or  two :  for  without 
pmoF  of  the  premises,  my  ebnchision  wmttd 


nj 


ffTATE  TMALS,  S  Chaklu  L  1038 — Ike  IMgrlg  qfite  BJgttt. 


[" 


Fint  forXand :  The  km;  c«Rnot  by  fait  let- 
Ultptcut  sake  the  w>q  nl'  mi  tJi«i  heir  16  hii 
&tlier,  nor  ca  taj  otber,  Ibr  be  ca&not  diiin- 
heiuttie  ri{hi  heir,  saiLh  the  book,  nor  ilo  do 
pr^iiJ>ce  lo  the  lord  of  liii  eseleai.  1  he  king 
bj  liis  prerugutve  shall  (jay  no  toll  for  Cliiujjs 
loi^bt  in  Riirs  and  mHrk«i»;  Ijut  acuttomfor 
pajiog  toll  to  ce  over  tlie  wil  aAd  freeholds  of 
imaOitt  (hall  bM  (he  kto^,  for  thn  toudietli 
lt«  iahnitancc  of  the  Mbj«ct;  and  therefare 
th*  king  ihall  not  h«Te  to  moch  a<  a  oay  over 
lu  laadi  wiibout  psviw;  and  if  not  a  w«;, 
tkeneertMnty  not  the  land  ittelf. 

Neil  fin  goods ;  If  a  man  baih  a  jewel  in 
pgefbr  tCD  pouad,  &c.  and  is  allainled  for  trea- 
H«,  d»e  king  rimll  not  have  this  jewel,  if  he  peji 
bM  dw  ten  pound.  So  if  cattle  be  distreined, 
adtheowner  ofthm  dfierwardt  be  itisinted, 
}«t  the  kinf  shall  not  hare  ibein  until  he  luve 
■tided  th&t  for  which  the;  were  distr«ine<l. 
ind  if  in  these  cases,  where  the  ownen  of  the 
|mkIs  kre  mch  capital  offenders,  the  king  can- 
sot  bare  them ;  much  less  shall  be  hare  them 
wkeo  the  owner  is  inDoeeni,  and  no  offender. 

Nay,  I  maj  well  nj  that  alinoit  every  lenf 
Md  page  of  hU  the  valnmes  of  our  Common- 
I*w  prove  this  ri»bt  of  propriety,  this  distific- 
lioaorinaiM  and  tuunr,  as  well  between  kine 
sod  (ubject,  «s  one  subject  and  anotliei;:  ind 
Iberdure  my  conclusion  follows.  That  if  the 
peregatJTe  extend  not  neither  to  lands  nor  to 
fDods,  then  i  fortiori  not  10  the  penoo,  which 
11  more  worth  than  either  lands  or  goods,  as  I 
nid.  And  jret  I  agree,  that  hj  the  very  law  of 
aiTure,  service  of  the  petson  of  the  subject  is 
ihe  to  his  soTereign ;  but  this  must  be  in  such 
Ihingt  which  art  not  a^nst  the  law  of  nntutv : 
but  to  have  the  body  imprisoned  without  any 
ttDse  declared,  and  so  to  become  in  bondagp,  I 
■m  lare  is  contraiy  unto,  and  against  A*  law 
rf  BMare,  and  therefore  not  to  be  infbrced  by 
the  soTETci^n  npon  his  snhjects. 

3.  My  Dest  reasua  is  drawn  eb  inutili  et  in- 
CMOMtto.  Forihe  Statute  dejranstntibnt pri- 
Mtam,  made  J  E.  3.  i*,  '  quod  nuUus  rjui  pri- 
'  Mnam  fregenc,  subeac  judicium  viisc  vel  mem- 
'  broniiB  pro  fraclione  pmonn  tantum,  nisi 
'  causa  pro  qua  capiu«  iinpriranetur  tale  judi- 
'ciom  i^nirnt.*  Whence  this  conclusion  is 
dtarjy  gathered,  Thnt  if  a  man  be  cominitted 
■0  prison  wiUioat  declaring  what  cause,  and 
then  if  either  malefactor  tfo  break  tiie  prison, 
•r  the  gaoler  solfer  him  to  escape,  iJbert  the 
Kisoner  so  escaping  had  Ciimmilted  cranta 
!*»«  majntatii,  yet  neither  the  gnnlcr  nor  nny 
Mber  ilnit  procured  his  escape,  hy  the  law  suf- 
fer any  corpciral  pnnishinent  for  ketting  bim  Bt 
ts<^,'  which,  if  admilted,  might  proi'e  in  con> 
Kqueoce  u  matter  of  great  danger  to  the  cool- 
Bumwealtb. 

4.  My  neit  reason  is  drawn  06  rrgii  honore, 
from  that  ereat  honour  the  law  doifa  utirihute 
«ato  sovereign  majesty  ;  and  therefore  tJie  rule 
•f  law  is,  that '  solum  rex  hoc  non  potest  ft.- 
'eere,  quod  non  potest  injusie  agere.'  Ai>d 
l^nefbre  if  a  subject  bath  the  donation,  and 
■^  kiif  tbe  pmentMioD  to  a  duoch,  wberv- 


BDto  the  king  prennia  widuot  Am  wbjoctV 
noniiiiauoD,  hera  liie  juart  inipedil  lie*  aeaiott 
the  incumbent,  and  the  kii^  is  in  law  no  <lt*7 

And  Hotsey,  Chief- Justice,  in  1  H.  T,  fbl.  4. 
sauh,  That  sir  John  Markham  told  king  Bdw. 
4.  he  could  not  arrest  a  mim  either  fur  tmason 
or  fdony,  as  a  subject  migbt,  becaase  that  if 
the  king  didwrong,  the  party  could  nut  have  hia 
aciiiHi  sgHiost  him. 

What  is  the  rei«m  that  aa  action  of  false 
imprisonment  ties  agoiost  the  Sheriff,  if  he  deck 
not  reium  the  king's  writ,  hy  wliioh  he  katb 
taken  the  body  of  the  subject,  but  this,  beeatis» 
tbe  writdodimDiter  nmrrarecatuaw  eMplionit, 
(which  if  it  doth  dm,  h  thai!  abate,  and  is  void 
in  law)  and  being  fctumed,  lite  party  wbea  W 
appoan  may  know  what  to  answer,  Mid  ttw 
court  upon  what  to  judged  And  if  the  king'* 
writ  under  his  gr«at  seal  caiusot  imprison  the 
subject,  unless  it  contains  the  cauie,  shall  then 
the  king's  warrant  otherwise  do  it  vntboM  cuu- 
tainini;  thtf  cause ;  that  bis  judges  upon  Tetajo 
thereof  may  likewise  judge  of  the  sam^  either 
to  remain,  or  judge  tbe  party  impriaoaed  } 

I  should  nrgue  this  point  mora  dosaly  iumm 
the  statute  of  Mogoa  Charta  SO.  '  Quod  ntdlas 
'  liber  homo  imprisaneiuT;'  llie  Statute  of  West. 
1.  cap.  15.  for  letting  peraoni  to  bail;  aod  the 
Judgmenu  liuely  ^iven  in  tiM  King's-Beoch  ; 
but  tbe  latter  of  these  Statutca  liaviug  been  hj 
that  bononrable  gemtcmaa  sir  £dwaiid  Coke 
(ta  wlmm  tlie  prDlessors  of  the  law  bsth  ia  thia 
Had  ail  succerding  aces,  are,  iind  will  be  much 
bound)  already  eipouaded  unto  us,  and  that 
also  fortified  by  thinie  uaay  cotempoiary  expo- 
sitions and  jadgments  by  bin  leariwdly  cit«}  ; 
and  there  being  many  learned  lawyci*  here, 
whine  time  I  will  not  waste,  wfan  were  prvsent; 
and  some  of  them  perhapsuf  counsel  in  tlie  late 
cause  adjudged  in  the  Kiiig's-Bench,  wlicre  ycNi 
(to  whose  person  I  now  meak)  do  well  kttuw  I 
was  absnit,  being  then  ot  counsel  IB  a  ciDSe  in 
another  court,  and  my  practice  being  hi  the 
country,  far  reiDolefrOTi  the  Treasure  of  Anti- 
quity, and  Keciwds  conducing  to  the  clearing 
of  this  point;  thei*tore  the  nurrownMi  of  my 
un  deists  tiding  commends  unto  me  sober  igao- 
ranee,  ritther  than  presnmpiuoiiH  knnwle^, 
sod  also  commands  me  no  further  to  troaUe 
your  patience. 

But  I  will  conclude  with  ttint  which  \  find 
reported  by  sir  John  Dntis,  wbu  was  tbe  king's 
.Serjeimt,  and  so,  by  the  doty  of  his  place,  wouM 
no  dou'it  maintain  to  his  utienDoit  the  prerogtt- 
tivej  »f  [he  king  his  royal  master;  and  yet  it 
was  by  liiiii  thuf  <snid  in  those  Repnrta  of  Ihs 
upon  the  case  ofTanistry  Customs,  p.  ^9,  That 
the  bii]:;s  of  Rnghind  ilways  hive  hwl  a  monnr- 
cby-Toyal,  and  n'rt  a  uionart'liy-fteignoral:  wlierc, 
under  the  fifrt  (>aiih  lie.J  •'  ilie  subj.  cts  are 
fre'meu,  an'1  lidie  pr<ipnety  'i<:  thilr  goi'ds, 
and  free-hold,  «nd  inheritance  in  tlii  if  l.n'ls; 
but  under  the  latter  th>  y  are  u  u.leiiis  and 
slaves,  and  bsve  propriety  in  nothitig.  And 
therefore  (saith  he)  when  a  tovhI  mn '^rch 
nMkes  a  new  conquest,  yet  if  )>e  receive*  any 


75]   STATE  TRIALS,  3  Cu auk  I.  l62a.~Proceedmg»  in  Parliament  r^iag  to    [7ff 

■ee  how   thin  Jui^meDt  lies  against   m,  and 
what  the  Judges  do  say  coacerBiog  tb«  taae." 


of  hii  natton'i  ancient  iohabiuinis  into  his  pro- 
tection, tfaej  and  tbcir  heirs  after  (hem  Minll 
enjo;  tbeir  lands  and  libcrtiei  according  to  the 
law."  And  there  he  voucheih  thli  Precedent 
and  Judgment  Tollowing,  giveu  before  WUliam 
the  Cooqueror  himself,  viz.  "  That  one  Shei^ 
bom  a  Saxon,  at  ibe  [ime  of  the  Conquest  be- 
ing ooDf  r  ol  a  castle  and  lands  in  Norfolk,  the 
conqueror  gnve  the  same  to  one  Warren  a  Nor- 
man; and  Sherbom  djting,  the  litir  claiming 
tba  some  bj  deKcnt  accoiding  to  the  law,  it 
was  belbte  the  conqoeror  himself  adjudged  Ibr 
the  heir,  and  tliat  the  gift  thereof  hy  the  Con- 
i|iteTor  WBSvoid." 

If  (hen  it  were  tbus  in  the  Conqueror's  lime, 
«iid  by  his  own  sentence  and  judgment,  and 
hath  so  con[inDed  in  all  the  succesaions  ol'  our 
king!  ever  since,  what  dnutt  need  we  have,  hut 
that  his  most  eicelleut  majestj',  upon  our  hum- 
.  ble  Petition  pnwtraieJ  at  his  feet,  (which,  as 
was  well  said,  is.the  best  passage  to  his  heart) 
vill  voocbskte  unto  ns  our  ancient  liberties  and 
birtb-rights,  with  a  thorough  reformation  of  this 
and  otber  just  grievances?  Andsn  I  huiublv 
crave  pardon  of  this  honourable  house,  that  I 
kave  tnade  a  short  lesson  long. 

Upon  this  and  other  arguments  made  in  this 
Cbsb  of  tbe  Habeas  Corpus,  the  house  referred 
tbe  wbole  bunncss  to  a  Coninittee,  to  examine 
all  the  proceedings ;  concerning  which,  Mr. 
Selden  uierwards  made  report  to  the  house, 
that  Mr.  Waterhouse,  a  Clerk  in  the  Crown- 
Office,  being  examined  before  tbe  Committee, 
did  confess,  that  b^  direction  from  sir  Robert 
Ueath,  the  king's  AttomejT-Ceaeral,  he  did 
writ«  the  draught  of  a  Judgment  in  the  Case 
before-mentioned,  which  was  delivered  to  Mr. 
Attorney.  And  Mr.  Keeling  being  examined 
before  tbe  Committee  did  confess,  that  after 
Mich,  term  last,  the  Auomej-Gcnerat  wished 
him  to  make  a  special  entry  of  the  Habeas 
Carpus:  to  which  he  answered,  he  knew  no 
Special  entrj  in  those  cases,  but  only  a  RaaU- 
IHur :  but  «aid  to  Mr.  Attorney,  that  if  he 
jJeased  to  draw  one,  and  the  court  after  assent- 
ed to  it,  be  would  then  enter  it.  The  Attorney 
did  accordin^y  make  a  draught,  and  the  copy 
thereof  Mr.  Keeling  produced  to  tbe  commit- 
tee. And  farther  said,  thut  he  carried  this 
draught  to  the  Judget,  but  they  would  nut  as- 
•eot  to  a  special  entry  :  nevertheless,  the  At- 
toroey-Ocneral  divers  time*  sent  lo  him,  and 
told  him  there  nas  no  remedy,  but  he  must  ru- 
ler it.  Yet  a  week  before  tlie  parliament  met, 
the  Ailomn-Genernl  c«lled  for  the  draught 
again,  which  accordingly  be  gave  unto  hini, 
and  aever  beard  of  it  more. 

Sir  Robtrt  Fhilipi,  upon  this  report,  gave 
his  opinion,  "  That  this  intended  Judgment  in 
the  llnbeas  Corpus,  was  a  draught  made  by 
some  man  that  desired  to  strike  us  from  all  our 
Liberties:  hut  the  Judges  justly  refused  it. 
But  if  the  Judges  did  intend  it,  we  sit  not  here 
(said  he)  to  answer  tbe  trust  we  are  sent  for,  if 
we  present  not  ibts  matter  to  his  lusjest^. 
Let  tbis  businen  be  further  searched  into,  and 


March  ST.  The  house  proceeded  in  further 
Debate  of  the  liberty  of  tbe  Subject.     When 

Mr'.   HackntU  resumed  the  debate  of  tbe 
matter  concemiog  the  Habeas  Corpus. 
JIfr.  UtchetU. 

The  lute  Judgment,  said  be,  which  lies  in 
bar,  is  only  aB«ward,  and  no  Judgment ;  and 
in  the  L.  C.  Justice's  aisumeiit,  chere  was  diV 
word  ^>oken.  That  tbe  kimg  might  cummit  or 
detain  without  cause.  For  the  kiug  to  commit 
a  man,  is  indigauBt  rege :  mercy  and  honour 
flow  immediately  from  ttie  king,  judgment  and 
justice  ate  his  too,  but  they  flow  fiom  liis  mi- 
nisters; the  sword  is  carried  before  him,  but 
the  sceptre  is  in  his  hands.  These  Siie  true 
emblems  of  a  good  king.  The  law  admits  not 
the  kinu's  power  of  detaining  in  prison  at  plea- 
sure. In  ancient  times  prisons  were  but  '  pro 
'  custodia,  carceres  non  ad  pcenam,  sed  ad 
*  custodiam.'  Admit  tbe  king  may  commit  a 
man,  yet  to  detain  him  as  long  as  I.e  pleasetb 
is  dangerous,  and  then  a  man  shall  be  punished 
before  bis  offence :  Imprisunment  is  a  macera- 
tion of  the  body,  and  horror  to  the  mind ;  it  i* 
vita  p^ori»orle. 

Then  tbe  honse  commanded  that  Case  In  the 
Lord  Chief  Justice  Anderson's  Book,  all  of  bis 
own  hand-writing,  to  be  openly  tetA,  The 
word)  of  the  Report  were  these  : . 

"  Divers  penons  fueront  committee  a  seve- 
ral temps  a  several  prisons,  sur  pleasure  sau* 
bon  cause  pane  de  queux  esiiant  ameines  en 
Ronck  le  Uoy.  £t  pa^te  e%  se  Commune  . 
Banck  tueront  accordant  a  la  ley  de  la  terre 
mise  a  targe  et  discharge  de  ]•  imprisonment,' 
pur  que  aucuns  giants  fueront  ostendus  ct  pro- 
cure un  commandment  a  les  Judges  que  ils  ne 
feni  iuent  apres.  Ceo  nient  meens  les  Judges 
ne  surcease  mes  per  advise  enter  eux  ib  fesoi- 
ent  certain  Articles  le  tenonr  de  qneux  ensue, 
et  deliver  eui  al  seigneurs  Cbaoncelor  et 
Treasurer  et  eux  suWribe  avec  toute  lour 
maines,  lea  Articles  snnt  come  enauiint." 

"  We  ber  majesty's  j  us tices  of  both  benches, 
and  barons  of  the  Exchequer,  desire  your  lord- 
ships, that  by  some  good  means  some  order 
may  be  taken,  that  her  highness's  subjects  may 
not  be  committed  or  deiaided  in  prison  by  com- 
mandment of  any  nobleman  or  counsellor 
against  the  laws  ot  the  realm ;  either  else  help 
us  to  have  access  to  her  majesiy,  to  tlie  end  to 
become  suitors  to  her  for  tlie  same ;  for  divers 
have  been  imprisoned  for  tuinJt  ordinary  actions 
and  suits  at  the  Common  Law,  until  they  hav« 
been  constrained  to  leave  the  same  against 
tbeir  wills,  and  put  the  same  to  order,  albeit 
judgment  and  execution  have  been  had  therein, 
to  tlieir  great  lotses  and  griefs ;  for  tbe  aid  (^ 
which  persons,  her  majesty's  wtils  have  sundry 
times  tiecn  directed  tu  sundry  persons,  having 
the  custody  of  such  peiMns  unlawfully  impri- 
soned, upon  which  Writs,  no  good  or  lawful 
cause  of  imprisonment  bach  been  returned  or 


nj 


^AT£TIUA1£,  sCnARLisl.  less tht  LOeriy  qf  Ihe  Su^al. 


[78 


cntified.  Wbsnupon,  seconding  to  Ae  laws, 
the;  imra  been  dischttrged  of  ibeir  impriton- 
nrat;  wme  ot  frhicli  persons  no  deltiertd, 
L»c  bees  agalu  comaiitti^ct  to  pnvin  ia  lecret 
plaCM,  Hid  not  [o  an;  CDmoioii  or  ordinarj 
pmoD,  or  lawful  officer  or  sheriff,  or  otber  Isw- 
ilillj  autlioriud,  to  bave  or  keep  a  gaol;  so 
thit  upon  complaint  mads  for  tberr  deliverr, 
the  queen's  courts  cannot  lelt  tn  whom  to  di- 
rect her  iDBJesCj'a  writs;  and  bj  thir  means 
jastke  cannot  be  done.  And  moreover,  dirers 
nScen  and  seiieaats  of  London  have  been 
miaj  timei  committed  to  prison  for  lawful  ex- 
enilmg  of  her  majesty'*  writa,  lued  forth  nf 
bcr  majeMys  courts  at  WesCminsCer ;  and 
IbcrebT  her  majesty's  lubjacts  and  officers  are 
w  tem6ed,  that  tKey  dara  not  sue  or  execute 
ber  majesty's  laws,  her  nrits  and  command- 
menti:  dirers  others  tuiTe  been  sent  for  fay 
ponifsnts,  and  broiigbt  to  London  from  iheir 
dwrlliniui,  and  by  unlawful  impriionment  have 
beea  comtrained,  not'only  to  withdraw  their 
IsaJiil  wits,  bat  bMe  also  been  compelled  (n 
piy  the  puraivanls,  lo  brini^ing  such  persons, 
gnat  sums  of  money.  Ail  which  upon  com- 
plaint tbe  judges  are  bound  by  office  and  oath 
10  relieve  and  help,  by  and  according  to  her 
■ujcsly's  1b«i.  And  when  it  pleaselli  jouc 
lofdBhips  to  will  diven  of  us  to  set  down  in 
what  cases  a  prisoner,  sent  to  custody,  by  her 
majesty  or.  her  council,  are  to  be  detained  iu 
luisiMi,  and  not  lo  be  delivered  by  her  mnjrsty'a 
Court  or  Judges;  we  think,  that  if  any  person 
be  commilted  by  her  toujetty'E  command,  fnim 
tier  person,  or  by  order  from  the  Council-board; 
Bad  if  Boy  ooe  or  two  of  her  council  commit 
one  for  High-Treusiui,  uicb  persons  (o  iu  tbe 
cases  before  committed,  may  not  be  delivered 
by  any  of  ber  coucts,  witbuut  due  trial  by  the 
law,  and  juds;meut  of  acc)uittBl  had:  never- 
(belcM  the  Judges  may  award  the  queen's  writ 
to  bring  the  bodies  of  sucb  prisoners  before 
them  1  and  if  upon  return  thereof,  tbe  causes 
ofibeir  couimiiment  be  certi&ed  to  tbe  judges 
B>  it  ought  ID  be  :  iben  tbe  judge;  in  the  cuses 
before,  ought  not  to  deliver  him ;  but  to  re- 
nuuid  him  to  the  place  from  whence  be  came, 
which  cnunDt  be  conieniently  done,  unless 
notice  of  the  cause  in  general,  or  else  in  spe- 
ctil,  be  i^iven  to  ihe  keeper  or  gaoler  that  shall 
haie  the  custody  of  sucb  prisoner."  All  the 
Jad^  and  Barons  did  subscribe  their  names 
to  these  Articles,  Ttr.  PaKUM  Elix.  and  de- 
livered one  to  the  Lonl-ChaDcellor,and  another 
10  tbe  Lord  Treasurer:  after  which  time  there 
(&I  follow  inoto  quietness  than  before,  iu  the 
came  betbre-mentioned. 
After  the  reiding  of  this  Report, 
Sa  Edaord  Coke  said,  That  of  my  own 
knawledge  this  Book  was  written  with  my  lord 
AodenoD's  own  hand,  it  is  no  Hying  report  of 
a  young  student.  I  was  solicitor  then,  and 
treuurar  Burieigh  was  as  much  against  com- 
aiitnieiit  as  any  of  this  kingdom ;  it  was  the 
Wbiie  SiBFes,  that  made  chisstir.  Let  us  draw 
(Dwardi  a  concluaion  :  the'quesdon  iSj  Wlwlher 
a  freeman  can  be  impriMaed  by  ttia  kiiig. 


without  settinjE  down  tbe  cause  P  I  leave  it  a* 
bare  as  £sop's  crow,  they  that  argue  agailM 
it,  '  Humorei  moci  at  non  remoti  corpusdA^ 
'  struuoi.'  It  is  ft  mnxim,  tbe  common  lair 
lias  admeasilred  the  king's  prerogative,  that  in 
no  case  it  can  prejudice  the  inberitunce  of  the 
subjects;  hud  C)ie  law  given  the  prerogative  to 
that  which  is  taken,  it  would  bave  set  some 
time  to  it,  else  mark  nbat  would 'follow.  I 
shall  bave  an  estate  of  inheritance  for  life,  or 
for  years  in  my  land,  or  propriety  ia  my  goods, 
aod  1  shall  be  a  tenant  at  will  lor  my  liberty ; 
I  shall  have  propriety  in  my  own  house,  and 
not  liberty  in  my  person,  '  Fertpicue  vera  ooa 
'  sunt  probanda.'  The  king  huth  distributed 
Ilia  judicial  ^wer  lo  courts  of  justice,  and  to 
ministers  ot  justice ;  it  ia  too  low  for  so  great  a 
monarcb  as  the  kin^  ia,  to  commit  toeu  to 
prison  ;  and  it  is  ngainit  taw,  that  men  sliould 
be  committed,  and  no  cause  shewed,  I  would 
not  speak  this,  but  that  I  hope  my  gracions 
kinij  wilt  hear  of  itt  yet  it  is  not  I,  Edward 
Coke,  that  speaks  it,  but  the  Reoords  tbat 
speaiis  it ;  we  have  a  national  appropriate  Law 
to  this  naitoii,  '  diiisi?  ab  orbe  BHiwnia.' 
■Mr.Seldea. 
I  was  sent  bither,  and  Crusted  with  the  lives 
and  liberties  of  them  that  sent  me.  Since  I 
came,  1  took  here  an  oath  to  defend  the  king's 
prerogatives  and  rights.  I  profess,  though 
once  1  was  of  council,  and  then  I  tpoke  tor  my 
fee,  for  the  gentlemen  in  their  Habeas  Corpus; 
yet  now  I  speak  according  to  my  knowledge 
and  conscienix. 

The  question  is.  Whether  any  suiject  or 
freeman,  that  is  committed  to  prison,  and  the 
cause  lint  shewn  in  the  Warrant,  he  ought  to 
he  bailed  or  delivered  ?  I  think,  conhdentlv,  it 
belongs  to  every  suliject  that  is  not  a  viUcin 
that  he  ouuhc  lo  be  bailed,  or  delivered. 

I  shall  speak  in  tiiis  course.  1.  I  will  shew 
the  ReisoDS.  S.  Acts  of  Parliament.  3.  Pre- 
cedents.    4.  Answer  Ubjectiiiiis. 

I.  Reasons  ilrawn  from  three  heads  : 
1.  From  Remedies  provided  by  ihe  common 
law  aeain^t  imprisomnent.  For  that  precious 
thing  of  Liberty  there  are  divers  renedies,  by 
which  it  appi-ars,  if  no  kno*n  cause  be  of  tiir- 
ther  detainment,  be  is  to  he  delivered.  I  will 
not  mention  tbe  action  of  false  imprisonment; 
but  tbe  writ  A  «dip  el  atia  which  i*  not  lakcu 
awny,  fiir  that  it  ii  in  Magna  Cbnrta.  That 
writ  was  seat  to  know,  if  the  parly  imprisoned 
were  committed  for  any  cause  of  malice  and 
hatred,  and  this  was  to  be  enquired  of  in-Jury. 
For  tbe  writ  de  homine  repUgiaado,  if  one  be 
iiaprisoned  under  the  shentf,  he  must  bed*li> 
vered,  if  he  be  not  detained  for  a  cause  tor 
which  he  is  not  replevisable.  For  the  Uabeet 
Corpns,  the  Keeper  is  to  bring  the  body  '  ad 
'  subjiciendum  ec  recipiendum.'  If  there  ba 
no  cause,  how  can  tbe  Coart  consider  of  th« 
cause  i  For  appeal,  by  Che  old  law  in  tlie  time 
of  H.  1,  one  impristmed  might  bave  his  appeal^ 
as  appears  by  Bractun,  c  35.  lii.  dt  conma. 
Fleta,  r.  48. 
3.  The  second  reawa  is  firou  the  oontidwa- 


79}    ?rATETRlAI^,'3CBAM.8g  I.   ]62S. 

lioB  ef  Frrempn  aod  ViUeini.  All  admit 
are  tibtri  hominet ;  but  dn  but  consider 
diffnciice  of  ViUeins  >nd  FreeoisD,  and  I  ki 
aa  dilTerence  in  their  persons,  bat  only  ibe 
cannot  be  impriionedi  m  the  uther  n 
Whoerer  cui  tiij[  1  cao  iinpri»in  him,  I 
•&J  he  is  cu<r  villein.  It  is  Uie  sole  di 
«f  Fiermen,  liiaC  tbejr  cannot  be  imprisoued  at 

Eleanure,  In  iiiri  time  none  hot  Jews  and  Vil- 
irns  could  be  imprisoned,  and  confined.  Tbe 
3rws  wtre  as  demesne  villeini  of  iIk  binf; ;  be 
could  tend  to  them  lo  lend  mouey,  and  if  they 
did  not,  lie  imprisoned  Ibern. 

3.  From  matter  of  PuDishmenC.  When  any 
thing  is  decbted  by  any  net*  atatuie  to  b«  nn 
oUence,  it  goes',  Thiit  he  shall  be  fined  and  im- 
priwned.  To  what  end  nere  this  in  any  act 
of  pariiameiit,  if  imprisooueiit  wai  at  the 
kine'i  will } 

II.  For  Acts  of  Parliarasnt,  Magna  Charia, 
c.  19.  In  that  net  nhen  it  wm  first  made,  it 
waa  '  nee  eum  in  curcere  mittimus,'  IT  Jub. 
that  statute  waa  made,  and  then  it  had  those 
words.  The  courae  tlieu  was  to  scod  down  all 
acts  of  parliament  and  charters  ti>  tbe  abbeys 
ro  be  enrolled.  .Matthew  I'aris,  3-lS.  &  M'3. 
recites  thHtcharttT  of  17  John, 

Tbey  object  in  Ma^a  Charta,  there 
'  terTiC,'  and  -      '     ' 

imprisons  do  man  at  all,  but  it  is  meant  the 
process  of  law,  5  E.  3..  Upon  some  occauon  it 
was  eiiarted,  Vhiit  none  be  attached  contrary 
lo  the  Urent  Chaitt'rnnd  tbe  luw  of  the  Innd. 
125  E.  3,  diven  were  committed  to  [h<i  Toh  er, 
«nid  no  man  knew  wliereiore,  whcreupnn  whs 
35  E.  3,  made,  98  F..  3,  c,  3,  36  E.  8,  n.  9.  is 
aiguTnrtiniprj^onnitTitj'perBpeciBleniBndatum.' 

Hi.  For  PrecetleiJls,  18  K.  3,  rot.  33  H.  1, 
H.  8,  rot.  9,  iS  Jac.  rot.  1S3. 

IV.  Objectintii  n^pinst  it.  Firft,  Against 
(be  re-jaon  ;  a  man  may  be  cammitlcd  tor  a 
point  of  atale  that  may  not  ht  known  :  I  un- 
deritaiid  nut  muUen  of  state;  I  expected  not 
the  objactiun  in  a  CnurC  uf  Justice;  and  it 
may  hi?  a  word  for  any  king  tn  try  the  courage 
of  nisjuclge<i,  and  to  iiinpnte  tlirre  isn  cause  of 
atate,  wlien  perhaps  mere  is  iin  cause  nppears 
to  them.  Itiaasif  they  sent  him  back  to  pii- 
aon.  ihey  knew  Dot  whcrcihre  ;  which  cannnt 
be  in  a  court  of  Justice,  irtwre  they  are  s\rorn 
M  do  justice. 

SecomiJy,  As  lo  the  Actsnf  Farlianieai,  tlie 
Judges  gave  no  answer,  but  only  commended 
tbrin;  but  the  Attorney  answered  them  vri'h 
one  blow  t.i  strike  them  all  ;  that  they  are  la 
be  eoiisidered  tir  comnnn  and  ordinary  cauaes, 
.  thirt  hapi>en  in  WeKmiosior-hall  nnly  But  do 
but  cousrdeT  Mtfoa  Cheita,  which  refleria 
u^n  the  king;  '  Dec  saper  eum  ibitous.'  By 
til*  law,  if  I  brine  "o  Appeal  of  Murder  against 
a  noUeman,  wb«li  i*  my  suit,  heshill  not  be 
tried  by  hi*  peers;  bilt  if  kr  he  indirted  for 
that  murder,  whirh  is  the  hing'i  s«t,  he  shall; 
which  shcwf,  that  that  which  is  in  Ua^na 
Cbarta  is  meant  of  tbe  king,  thoufh  it  In  aut 
in  Uw  thiid  psraw. 


— Ptwxedingi  at  Parliament  Tttatatg  to    [90 

Third  Olgectionnagaiasi  the  StaiDleofWeat- 
mioster  I.e.  15.  But  the  king's  command  is 
ihe  conmaud  of  tile  king  by  his  justices;  and 
also  tlie  word,  ■  Repleiisabie,'  navu  signifies 
bailable  ;  bailable.  La  in  a  Coart  of  BeciiVd,  by 
the  king'sjusticei  :  but  repleiisahle,  is  by  tba 
(berjfT.  Ilie  sututa  is  to  ibe  sheriff,  and  it 
shews  the  particular  causes,  and  concludes  that 
rhe  iheriff  shall  luw  bii  bailiwick.-  Ihe  sheriff' 
coald  never  tvplevy  onef  irmurder,  or  matters 
of  the  forest  :  but  in  the  King'a-beuch  far 
murder,  or  matter^  of  tlie  f'lresi,  they  niuy,  3. 
asais.  19,  SI  E.  4,  35.  9«  H.  6,  4».  Newhiii.  If 
any  man  be  taken  by  our  command,  or  by  tbe 
command  of  the  king,  if  tbe  theiiif  take  the 
party,  be  must  come  lo  us,  we  will  grant  ft 
Supersedeas. 

FoiirtUy,  They  object  BEainst  the  pncedcnla 
cited  ;  tbey  are  all  oi'  this  kind,  tbey  were  im- 
prisoned *  per  mandatum  dmnini  refis,'  er 
'  concilii,'  without  cause,  or  tbe  cause  is  ei- 
prrs^d.  When  the  cause  ii  expreseed,  and  is 
within  the  ciignizajice  of  the  court,  tbete  they 
bailed  them  ;  but  when  it  is  for  felony  or  trea- 
son, it  may  be  done  beyond  the  seas,  and  then 
tlie  court  iias  no  connizance  of  tbem.  Wheti 
no  cause  is  set,  yet  bailment  is  alledged ;  tben  . 
ihey  answer  divers  were  so  bailcfl,  but  tke 
cause  appe.trs  by  Paper-Books  ;  hot  1  never 
■aw  these  Books  to  be  Records,  and  Judges  of 
Record  made  their  Judgment  in  Records,  and 
the  cause  only  appears  by  Record. 

For  the  Resolution  cited  34  Eliz.  all  iirec«- 
-  dents  wereread,  acta  of  pailiHmentindeea  were 
passed  orcr,  and  yet  that  was  not  read.  As 
ive  have  tlisc  liberty  here,  so  I  dare  say,  no 
prinre  in  Chrislendoin  doth  assume  tliis  power 
to  imprison  any  without  any  cause.  I  lind  no 
sleps  or  mfi^ium  of  any  sucli  power.* 

ttalurduy,  March  99,  ies8.  Mr.  Soiiaivr 
spnke  as  fnUoweth  : 

My  care  wben  I  tpakt  last  was  lo  gire  satis- 

*  "  Die  Veneris,  Mar.  S8.  I  rise  to  make 
a  motion.  Yesterday  a  learned  Argument  was 
made  by  Mr.  Suiicilor,  and  II  Edw.  1,  was 
cited  by  hiro,  which  makes  clearly  fur  llie  Sub- 
ject, also  for  that  talui  popuii.  1  am  sure  that 
'  hhertas  populi  est  snlus  populi.'  And  Festus 
himself  ihatsent  Paul  to  Agrippa  was  alawyer 
of  tlie  empire ;  and  to  send  a  prisoner  without 
si^ifying  the  crimes  laid  apunst  bim,  seined 
unreasonable  to  Feslus  to  do.  By  the  law  of 
tbe  empire  none  were  to  hp  committed  abote 
thirty  da^n,  and  tbegnoler  is  under  a  penalty  lu 
certi]^  the  cause  of  the  prisoner's  commitinent  i 
andifthegaolerhealnck.heistohelined.  When 
they  speak  here  ul  (lie  Judgment  given  in  the 
King's  Bench,  tl>ey  say  the  Prpcrdeiita  were 
mis-reciteil.  Let  a  Sub-commiitee  search  into 
those  Judgments  and  Preredents.  1  heard 
here  a  gumugar,  nnd  there  is  nothing  but,  B 
rmillitur.  Tlie  course  of  the  offiocr  is  to 
enter  fflouiipc,  &c.  aiid  that  i*iill  ibey  be  da., 
lirered  by  kw,  imd  is  all  the  Judgimeot  tiuit 
can  be "  £i  US3.  Pyraaii.  8m  SaUea's 
LiieinhisVVoflu. 

Goo;;lc 


61) 


STATE  TRIALS.  5  Chajubs  I.   lS2B.—ihe  SMierty  qfiU  Sutject. 


[81 


in  that  tbe  judges  diiJ  not  err  JD  (heir  late 
uQon* ;  but  iftfaej  did,  it  was  cum  patri- 
tu:  tbejudgo  knew  notliiiig  of  the  cause  oi 
the  (ectleoien'a  impruantneot ;  if  the^  had 
known  ihe  caose  of  their  impHsuDneiit  m  pri- 
TMc,  tlxf  would  have  appealed  to  bia  majegtj 
fer  bit  grace.  For  to  reiterate  all  Lhe  autho- 
titin  I  iriil  not,  I  hare  lometiiiai;  tg  mv  in  the 
ooint,  tu  put  iuto  the  scale,  nhtSa  miffA  have 
laea  thtn  uid,  had  it  not  been  fur  the  unhappy 
difl«ieace  that  might  have  been  between  t^ 
\ma  count  in  WetcmiMter-liall,  the  KiugV 
bench  and  the  Chaticery  Court. 

In  13  Jac  divera  were  committed  /or  di 
dwdicDce  to  the  Decree  of  the  Court  of  Clian- 
oaj,  M  namelj  Rovwell  and  others,  and  iti 
nnived.  That  the  Judge*  cotild  not  deliver 
*ach,  and  at  the  lame  time  some  were  i 
■litled  bj  warraat  from  the  king  and  the  lords 
«([he  council,  and  this  came  in  queslioii,  Midi. 
13  Jac  andso  oontitiUGd  divera  Ternu.  There 
ns  theo  r«c«nrse  bad  to  tho«e  arfpimeots,  and 
1  have  ■  report  here  of  that  time  ivhat  the 
judges  did  Uiea,  part  whereof  I  will  read. 

It  wM  reiolved  bj  Coke,*  Crook,  Duderidge 
ud  Houston,  that  the  retuTD  was  good,  and 
that  the  cause  need  not  to  be  ditclo^,  being 
'  per  maadntam  coacilii,'  as  '  arcana  recni'. 
(iDd  lhe  report  further  saith,  That  in  34  Elii. 
it  «u  resolved  accordinglj),  and  bj  Coke  it 
■Bi  said,  That  if  the  privj-council  commit  one, 
he  i*  not  baitable  bj  an^  court  ofjuttice,  and 
Stamford'*  opinion  is  to,  fbl.  79.  &e  what 
Dpjnios  the  Jui^e  had  of  the  resolution  in  34 
£liz.  and  of  Stamford, 

To  this  sir  Eiuntrd  Coke  replied  ■■  This  r^ 
pott  moves  not  me  at  all ;  that  report  is  not 

St  11  years  old,  but  under  ige,  being  in  13 
c  In  truth,  when  I  read  Stamford,  I  wai  of 
Idi  opinion  at  die  first,  but  aitice,  lookine  into 
thaw  Records  (■eforC'mentlooed,  I  waa  of  ano- 
ibtf  mrnd.f  He  brings  in  an  ill  lime  13  Jac. 
irinn  there  was  daahiiig  between  the  Court  of 
Kuig^t~bench  and  Chancery,  as  nlio  there  were 
tben  man;  of  the  tnitors  that  were  of  the 
Piiitde[>Treason,  committed  '  per  raandatam 
'  concilii.' 

Upon  idomitj,  April  1,  the  Debate  bsiog 

J      -,  Bjjbe,,  Philips  mavad.  That 

)  house  was  now  read;  for  the 


*  Coke  was  then  a  Jad(e,  aud  ia  faroor  at 

t  "  Coke  of  one  mind,  when  a  Judge,  and 
ia  &ToaT;  of  another,  when  out  of  court,  and 
diacantented."     (iJote  to  old  Edition.) 

Of  Coke's  conduct  in  pariiimeot,  Mr.  Bar- 
nagton,  in  a  Note  to  his  Observaliona  on  Sta- 
tata  Wettmioater  th«  Secood,  sa;^  "  The 
WepnblicatioD  of  ti»  Journals  of  the  House 
of  Comnioas  sbewa,  that  he  did  not,  aa  a  Meai- 
hnofPariiament,  prostitutf  hia  amaiing  know- 
la^  of  muiiicipal  law,  to  political 


beieMnll; 
niMaHiie 


W  ItMtitaio." 


Mithoritic*,  which  he  ciW  in 


question,  thej  tnight  Jiear  the  resolution  read 
of  nil  the  Judges  in  84  £liz.  about  this  matter. 
Then 

Sir  Edward  Coke  stood  up  and  aaid,  The 
glass  of  Time  runs  out,  and  something  cast  upon 
us  hath  returded  us ;  when  1  spake  iigainst  the 
Loans  uud  this  matter,  I  expected  blows,  iind 
somewhat  nni  ipoten,  tboiigh  not  to  the  mnilcr. 
ConcerniuE  UiHt  (tliat  hath  b«en  objectedv  I 
did  nhen  I  wns  a  Judge,  I  will  say  sumewhal. 
Indeed,  a  motion  mas  made,  but  no  argument 
or  debate,  or  resolution  upon  advice ;  I  will 
never  palliate  with  this  house,  there  ii  no  Judge 
that  hath  an  upright  heart  to  Cod,  and  a  clear 
heart  to  the  world,  but  he  hath  40me  warrant 
for  every  thing  that  he  doih.  I  confess  when 
I  read  Stamford  then,  and  had  it  ia  my  hands, 
I  was  of  that  opinion  at  the  Coundl-TaUe; 
hut  when  i  perceived  that  soime  members  of 
this  lionse  were  taken  away,  even  in  the  face 
of  this  houae,  and  sent  lo  prison,  and  when  I 
was  not  fdr  off  Irom  that  place  myself,  I  weiit 
to  my  book,  and  would  not  be  quiet  till  I  hful 
satisfied  myself.     Stamford  at  the  first  was  my 

C'  ^e,  hut  my  guide  had  deceived  me,  tliere- 
I  swerved  from  it:  I  have  now  better 
guide*,  Acts  of  Parliament  and  oilier  prece- 
dents, these  are  now  my  guides.  I  desire  to 
be  free  from  the  impuiatiou  that  hath   bceo 

Aa  for  the  Copy  of  the  intended  Judgment, 
I  fear,  had  it  not  been  fot  this  parliament,  it 
had  been  entered  ere  this  time;  n  parliament 
brings  Judges  end  all  other  men  into  grx>d  or- 
der :  if  any  clerk  had  drawn  this  draughi,  hs 
would  have  done  it  by  a  prccedrni,  and  there 
can  be  no  precedent  found  that  warrants  it, 
and  therefore  I  believe  that  some  other  did  it, 
— This  draught  of  the.  Judgment,  should  it  be 
entered,  «ilT  sting  ua  to  death,  '  quia  nulla 
'causa  fuit  osienta,  ideo  ne  fuit  boileabile;' 
and  that  it  nppears  (o  be  so  by  the  Records.  X 
persuade  myaelf  Mr,  Attorney  drew  it ;  I  had 
a  copy  of  my  lord  Anderson'*  Report  ofthA 
Judges  Resolution,  34  Eliz.  long  ago ;  but  I 
durst  not  vouch  it  (and  it  was  so  in  that  copy) 
for  that  it  waa  Apocrypha,  and  did  not  answer 
bis  gravity  that  made  it,  and  yet  it  was  citad 
in  the  Erne's  Bench,  •  That  aU  the  Judges  of 
England  ruled  it  so.' 

Then  tbe  House  of  Commons  came  to  tltt 
fullowiag  Hesalutions : 

Rejolved  upon  the  question,  nem.  con. 
'  I.  That  no  Freeman  ought  to  be  detained 
or  kept  in  prison,  or  olhenvise  restrained  br 
the  command  of  the  king  or  privy-council,  or 
any  other,  unless  some  cause  of  tbe  commit- 
ment, detainer  or  restraint  be  expressed,  for 
which  by  law  be  ought  to  be  committed,  de- 
tained or  restrained. 

'  II.  Tliat  the  Writ  of  Habeas  Corpus  may 
not  be  denied,  knit  ought  to  be  g^nted  to 
every  man  that  is  committed  or  detHined  in 
prison,  or  otherwise  restrained,  tliougll  it  ba 
by  tbe  command  of  the  king,  the  privy-cow^ 
c  J,  or  any  other,  he  praying  tbe  same. 


83]  STATE  TRIAI5,  S  Charles  I.  ie26--ProMduigt  m  Parltaniatl  rtlaltag  la  [64 
gcnrral,  thui  the  Laws  of  Ena;lHnd  are  ground- 
ed uD  rcMon,  more  ancient  than  books,  ccin- 
sifting  much  in  unwriiicn  custom;,  jet  w  full 
of  juitica  mnd  tma  equity,  that  your  most  ho- 
nourable prcdecesMrs  and  inceitora  manj 
times  prapugned  thtm  with  a  nolvmu*  tmtlari  ; 
and  so  niicient,  that  fmm  the  Saxon  days,  not- 
withswiiding  ihe  injuriei  qnd  niins  of  lime, 
they  liBve  continued  in  most  parts  ttie  same,  as 
may  appear  in  old  rem uning  monuments  of  the 
laws  or  EtKelbert,  the  fint  Chuitisn  kin^of 
Kent,  Ina  the  king  uf  the  West-Saxons,  Ofia  of 
the  Mercians,  and  of  Alfred  tiie  great  monarch, 
who  united  the  Saion  Heptarchy,  whose  laws 
are  yet  to  be  seen,  published,  as  some  think, 
by  parliament,  as  he  says  to  that  end,  '  Ut  ijui 
'  sub  uno  riKe,  sub  una  l<^e  regerenlitr.'  And 
though  the  Book  of  Litchfield,  speakine  of  tbe 
troublesome  times  of  the  Danes,  says  thnt  then 
'  Jus  sopitum  erat  in  regno,  leges  et  consueta- 
'  dines  Fopitx  sunt,'  and  >  prava  voluntas,  vis, 
'  et  violcotin  magia  regnabant  qunm  judicia  vel 
'  iuslitia ;'  yet,  by  (he  blessioe  of  God,  a  good 
kuig,  Edward,  commonly  culled  St.  Edward, 
did  awaken  ihnse  law* ,  and  as  the  old  words  are, 
<  Eicitntis  reparavit,  reparatas  decnravii,  de- 
'  coraias  confirmavit.'  Which  '  coutirmevit,* 
shews,  that  ^ood  king  Eduard  did  not  give 
those  laws,  which  William  tbe  Conqueror,  and 
since  that  time,  hafe  swoni 


'  III.  That  if  a'  Freeman  be 

'  detained  in  prison,  or  otherwise  tesimined  by 

*  the  command  of  the  kinj;,  the  privy-cnuucil, 
'  or  any  other,  no  cause  of  sucb  commitment, 

*  detainer,  or  reslriiipt  being  rxpressrd,  for 
'  which  by  law  he  oufiht  to  be  commmed,  de- 
■  lained,  or  teitrnineil,  and  the  same  be  rctum- 
'  ed  upon  an  Huben^  Corpus,  granted  fur  the 
'  said  party  ;   then  hs  ought  to  be  delivered  or 

And  then  taking  intn  enniid  era  linn  the"  Pro- 
perty of  the  Subject  in  his  Goods,  tbey  came  to 
this  Aeiolution,  to  nliich  ibete  was  not  a  aega- 

•  That  it  is  the  aniient  and  indubitable  Right 
'  of  every  Fieemau,  ihat  he  hnih  a  full  ni^d  ab- 
'  solute  property  in  his  goods  and  estate  ;   that 

*  noTax,Taillage,  Loan,  Benevolencc,oroilKr 
'  like  charge  ought  to  be  commanded,  or  levied 
'  by  the  kine,  or  any  of  his  minister!,  without 

rat  by  act  of  partiament.' 


The  Commotis  having  ahencd  their  care  of 
the  Subjects  in  the  Liberty  of  their  Persons, 
and  Propriety  in  their  Goods,  did  now  prepare 
to  transmit  their  Resolutions  to  the  Lords  for 
their  concurrence  ;  and  seveml  members  were 
appointed  to  manage  a  Conference  with'lhc 
l!ord<i  coiicernin);  the  same;  and  Monday, 
.April?,  tlie  Conrtrtnrc  was  held,  and  upeued 
by  sir  Dudley  Di^s. 

A  Confehence  desired  by  the  Lords,  and  had 

by  a  Committee  uf  both  douses,  concern- 
ing the  Hi^hts  and  Privilegef  of  [be  Svb- 

Sir  Dudla/  Diggt, 

Mt  Lords  ;  I  sbiUI,  Thnpe,  Huspiciouily  be- 
gin this  Conference  this  day,  with  an  observa- 
tion out  of  nn  Holy  Story,  in  the  days  of  good 
king  Josiah,  2  Chron.  3*,  nben  the  Innd  was 
purged  of  Idolatry,  and  the  grerit  men  went 
about  to  repair  the  House  of  God  ;  while  mo- 
ney was  sought  for,  there  was  found  a  Bonk  of 
the  Law  which  bad  been  neglected,  and  after- 
wanls  being  presented  to  the  good  king,  pro- 
cured the  blessing,  which  your  lordship  may 
read  in  the  Scriptur«.     S  Kings  83. 

My  good  lotds,  I  am  confident  your  lord- 
ships will  as  cheerfully  join  with  tbe  commons, 
io  acknowledgment  of  God's  great  blessing  in 
our  good  king  Josiah,  Ut  the  knights,  citizens, 
and  burgesses  of  the  house  of  commons,  by  me 
tbeir  unworthiest  servant,  do  thankfully  re- 
member your  most  religious  and  truly  hocioui^ 
ahie  invitaiion  of  them  to  the  late  Petition,  for 
deaosing  this  land  from  Popbh  Abominations ; 
which  1  may  truly  call  a  necessary  and  a  hnppy 
repairing  of  tlie  Ilouse  of  God.  And,  to  go  on 
with  tbe  parallel,  whilst  we  Che  commons,  out 
of  our  good  affectioiis,  were  seeking  for  nioney, 
we  found,  I  cannot  say  a  Book  of  the  Law,  but 
many,  and  those  fundamental  points  thereof 
neglected  and  broken,  which  hath  occasioned 
Mir  desire  of  this  Conference :  wherein  J  am 
int  conunuided  to  *bew  to  your  lordibips  in 


And  here,  my  lords,  by  many  coses  frequent 
in  our  modern  laws,  strongly  concurring  wiih 
iliosii  of  the  andeut  Saxon  kings,  I  might,  if 
time  were  not  precious,  demonstrate  that  our 
Laws  and  Customs  were  tlie  sAmc. 

I  will  only  intreac  your  lordships  leave  to  tell 
you,  that  as  we  have  now,  even  m  those  Saioa 
times  they  had  their  Courts-Baron  nnd  Conrts- 
Leet,  ami  SheritF-Courts,  by  which,  a*  Tncitu* 
Siiys  of  the  Germans  their  ancestors,  'Jur& 
'  reddehant  per  pagos  et  vices;'  and,  I  do  be- 
lieve, as  we  have  now,  they  bad  tbeir  porlitt- 
ments,  where  new  laws  were  made  *  cum  con- 
'  sensu  pnelacoium,  magnatum  et  totius  coiu- 
'  mnnitalis  ;'  or,  as  another  writes,  '  cum  coD- 
'  silio  prelatorum,  nobilium,  et  sapiemium  lai- 
'  corum.'  1  will  add  nothing  out  of  Glanvile 
thai  wrote  in  the  time  of  H.  9,  or  Bracton  that 
wrote  in  tbe  days  of  H.  3,  only  give  me  leave 
to  cite  that  of  (^orte^cue,  the  learned  Chancel- 
lor to  H.  0,  who  writing  of  this  kingdom,  aayi, 
'  RegDum  illud  in  omnibus  natioiium,  et  reeum 
'  temporibus,  eiidem  quibus  nunc  r^itur  le^ 
'  bus  et  consuetudinibus,  regebatur.'  But,  my 
good  lords,  as  the  poet  said  of  Faroe,  I  may  mj 
of  our  Common-Law ; 

'  Ingreditnrque  solo  caput  inter  nubjla  condit.' 
Wherefore  tlie  cloudy  part  being  mine,  I  will 
make  baste  to  open  nay  for  your  lordships  to 
bear  more  certain  Arguments,  and  SQcb  as  go 
on  more  sure  grounds. 

Be  pleased  then  to  know,  that  it  is  an  no- 
doubted  and  fundamental  point  of  this  so  an- 
cient  Common-Law  of  England,  that  the  Sub- 
ject bath  •  Inw  pnrperty  in  hit  Goodtaml 


6S] 


STATE  TRIALS.  3  Chjirlu  I.  iG-IB—lfie  Liberty  ^iheStitJtcl. 


(86 


Fosseanona,  nhich  doth  preserve,  as  sacred, 
ilut  ai€tim  ft  tutuK,  itiHt  a  tlie  imr^of  iudus- 
irjr,  and  mother  i)l'ci>urBge,and  without  which, 
there  can  be  no  justice,  uf  which  raeum  et  tuum 
a  the  proper  ubject.  But  the  undnubted 
birthnght  of  Tree  Subjects,  huth  lately  not  a 
little  baea  iorailedaDd  prejudiced  by  pressures, 
the  more  guevooa,  UNmuse  they  biive  been 
punucd  by  impriMnmeat,  contrary  to  the  fran- 
chises of  this  laud  ;  uud  when,  according  to 
ihe  lans  and  slHluirs  of  this  reiilu,redress  huth 
beeii  saughi  for  in  a  I^;b1  way,  by  dernxoding 
Uabeu  Curput  frum  the  Judges,  and  a  dis- 
charge or  trial  according  to  the  Inw  nf  the  land, 
success  bath  fuiled ;  thai  now  enfarceth  the 
Ckioimous,  in  this  present  parliament  asiemhied, 
to  eiuiuioe  Ly  acts  of  parliament,  precedents 
•nd  reasons,  the  truth  of  the  En^isli  Subjects 
liberty,  which  I  shall  leave  to  learned  gentie- 
tuen,  whose  weighty  Arguiueuu,  I  hope,  will 
leave  no  place  ia  your  lords hjps  memories.  Tor 
the  errors  and  iiiGrmities  oi  your  humblest 
seivaot,  thai  doth  thankfully  nckuowledge  the 
great  furour  of  your  honourable  and  patient 
atleotioD. 

Me.  LlTTLtTON's  Akguheht. 

Made  by  (he  command  of  the  House  of  Com- 

Mous  out  of  Acts  of  Parliament,  snd  nutho- 

rilies  of  taw,  expounding  the  same,  at  the 

fir^  Cunl'crence  with  the  Lords,  concerning 

theLibertyofthePeisonofeverj  Freeman.* 

My  lords;  .Upon  the  occa&ions  delivered  by 

the  gentlenun  that  la>t  spoke,  your  lordships 

hare  heard  the  Commons  have  taken  into  their 

serious  con  tide  rati  on  the  matler  of  Personal 

Liberty,  and  after  long  debate  thereof  i 


nnsaiistied,  tliey  have  opon.a  full  search,  nod 
clear  undersbinding  of^  all  things  pertinent 
to  the  qnestion,  ananiiuously  declared :  Tlint 
no  Freeman  ought  to  be  comiuitted  or  detained 
iu  prison  by  the  command  of  the  King  or  Privy- 
Council,  or  any  other,  unless  some  cause  of 
■be  commitment,  detainer,  or  reslnuut  be  ex- 
prcKed,  for  which  by  law  he  ought  to  be  com- 
mitted, detaiDed,or  restrained.  And  they  have 
tent  lue,  tvilh  other  of  their  members,  to  repre- 
seNC  unto  your  lordsliips  the  true  gniunds  of 
such  ih^  llesulutiun,  and  have  charged  me 
patticul*rly,  leaving  the  reasons  of  law  and  pre- 
cedents for  others,  to  give  your  lordships  iui»- 
foclion,  that  (his  Liberty  is  established  and  con- 
finned  by  the  whole  state,  (be  king,  the  lords 
ipiriiual  and  temporal,  and  cummons,  by  se- 
tenil  acts  of  p.'irliiioictit;  the  authority  whereof 
is  so  great,  th»t  it  can  receiie  no  ansnei',  ~ 


•  This  Arcuinerit  of  Mr.  Littleton  is  prinCcH 
in  '  Cotton  i  Posthiiraa;'  ns  if  made  by  sir  Ro- 
bert Cotton,  hart.  But  whosoever  consults  the 
Historians  of  those  times,  will  find,  that  Diggs, 
Littleton,  Selden  and  Coke,  nere  the  four 
lawyers  appointed  by  the  House  of  Cc 
tg  manage  Uiat  memorable  Conference. 


by  interpretation  or  repcnl  by  future  s( 
And  tliote  tliat  I  shall  mind  .vour  lordships  of, 
are  bo  diretl  in  poi>it,  (hiit  iliey  can  bear  no 
other  exposition  ul  ull,  and  mre  I  am  they  are 
stUHn  force. 

The  lirst  of  them  is  tliu  Grand  Charter  of  tlie 
Lib(:ities  of  £ngl)iiul,  fir-t  nrnnied  in  the  ITtli 
of  king  John,  and  renewi'd  in  the  9  Hen.  S,  and 
since  cunRnned  in  parliiuuenl  ah:<ve  30  titnes. 
The  words  are  these,  ch.  HO.  <  Nulliis  hber 
'  homo  capiatur,  vel  iiuprisunctur,  aut  disseise* 
'  tor  de  libero  tenerneiito  suo,  lel  lihertatibus, 
'  vel  liheris  consueludinihus  suis,  uut  utlagcre- 
'  tur,  aut  exuletur,  nut  aliquo  modo  de:>iruutar, 
'  tiec  super  eum  ihiinus.  ncc  super  eum  mi:tE- 
'  mua,  nisi  per  legale  judicium  pnriuia  suoruin 
'  vel  pcrlcrifm  teriEe. 

These  words,  '  iiollus  liber  homo,'  ic,  nre 
express  euough,  yet  it  is  remarkable  that  Mnt- 
tl«w  Paris,  an  uuthnr  of  special  credit,  doth 
observe,  fol,  432,  that  the  Charter  of  9  H.  R, 
«iis  the  very  samens  thntof  IT  John,  '  in  nulla 


milis-  I 


•  his  w 


■rds;    I 


id  that  of  kin, 


■ily    'Nee 

'  cnrceruni  mittemus;'  and  such  a  corruptiou 
as  ii  now  in  print,  might  easily  happen  betwixt 
9  Ii.  3,  nnd  sa  E.  1,  when  this  Charter  was 
first  exemplified,  hut  certainly  (here  is  suffici- 
ent left  in  that  which  ia  extant  to  decide  this 
question.  For  the  words  are,  '  That  no  Free- 
'  man  shall  be  taken  or  imprisoned,  but  by  tlie 
'  lawful  Judgment  of  his  peers;'  which  is  bv  a 
jury  of  perrs,  ordinary  jurors,  or  others,  who 
nre  their  peefs,,or  by  the  law  of  the  land  ! 
which  words,  *  Law  of  the  lauil,'  must  of 
necessity  be  understood  in  (bis  nation,  to  h» 
by  due  process  of  the  lair,  and  n'lt  the  law 
of  llie  liuiil  generally,  or  otherwise  it  would 
comprehend  bond-men  (Hhom  we  call  Vil- 
leins) who  are  e\cludcd  by  llie  word  '  Liber;' 
for  the  general  lavr  of  the  land  doth  allow  (heir 
lords  to  imprison  them  at  their  pleasure  without 
cause,  wherein  they  only  diAar  from  Uie  free- 
men in  respect  of  their  persons,  who  cannot  lia 
iuiprisoned  Mithout  a  cause.  And  that  this  is 
the  true  understanding  of  these  worils,  'Per 
legem  cerne,'  will  more  plainly  appear  by  di- 
vers other  statutes  that  V  shall  u>e,  which  do 
expound  the  law  accordingly.  And  (hough  the 
words  of  this  Grand  Chorter  be  spoken  in  the 
third  pcisoti,  yet  they  are  not  to  be  understood 
of  suits  bctnixt  party  and  party,  nt  least  not  of 
them  alone,  but  even  of  the  king's  suits  against 
his  subject),  as  will  appear  by  the  occasion  nf 
gt-dingof  tlint  Chartef',  whidi  was  by  reason  of 
the  diOiTe-.ees  betwixt  those  kings  and  their 
people,  and  tlierefore  properly  to  be  applied 
unto  their  power  over  them,  and  not  to  ordi- 
nary questions  betwixt  sulject  and  subject. 

.^coiidly.  The  word  '  yer  legale  judicium 
'pariuDi  suorum,'  immediately  prectding  ibc 
other  of  '  per  legem  zvnic,'  are  meant  of  Triab 
at  the  king's  suit,  and  not  at  the  prosecuiiou  nf 
Bsul>jFC^  And  tlierefore,  if  a  pettofthc  realm 
be  airuigi^ed,  at  the  suit  of  the  king,  upon  an 
Indictment' of  murder,  he  shall  be  trietlby  lib 


W]    SFATE  TRIALS,  3  CBiLthtsl.  iOSS.'-Procttdmgi  in  ParlkmaUrdMtmg  to    (M 

pern,  that  is  nolilet;  but  if  he  be  appc^aled  of 
murder  bj  s  nibject,  his  triol  shnll  bi  bj  in 
onJinnry  Jurj  of  ik  fieeliolder»,  uapjicBreth 
in  10  E.  4, 6, 33  H.  8,  Bmoke  Title  Trials  143. 
Stan.  Cor.  li.  3,  ca.  1,  !o\.  159.  nnd  in  10  E.  4, 
6,  it  ig  aaid,  such  is  tbe  meaning  ofMaj^iia 
CharIB,  for  tlie  same  reason:  tbereforeas' per 
'judicium  pnrium  SDonim'  extends  to  tbe  king's 
wiit,  BO  shall  these  words  '  per  leeem  lerrs.' 

And  in  8  E.  S,  rot.  pari.  n.  7,  there  is  a  Peti- 
tion that  a  Writ  under  the  privy-seal  vent  to 
Uie  cuariiions  of  the  i^reat  seals,  to  cau^e  lauds 
ID  be  seized'  into  the  king's  binds,  b;  force  of 
which  there  «ent  a  writ  out  of  the  Chancery  to 
the  Escheator,  to  sciie,  agsinat  the  furm  of  the 
Granil  Charter,  that  the  king  nor  his  tntuisters 
shall  out  no  man  ofbis  freehold  without  reason- 
able judgment,  and  the  party  vna  restored  to 
bishuid;  wliich  shewed  tbe  statute  did  c>;tend 
to  the  king. 

I'iiere  was  no  inTosion  upon  this  personal 
liberty,  tOl  tbe  time  uf  Edw.  S,  which  vras  soon 
(esented  by  the  snbject;  fur  in  5  E.  3,  c.  9,  it 
,  is  ordained  in  these  words :  '  It  is  enacted  tliat 
'no  iQao  frum  hencelbrth  shall  he  attached  by 

*  any  accusation,  nor  fore-judged  of  life  or  limb, 
'  nor  liis  lands,  tenements,  aoods,  nor  chattels, 
'  seized  into  the  king's  hnnds,  against  the  form 

*  of  the  Great  Charter,  and  the  law  of  the  lonrt,' 
9S  C  3,  c.  4,  it  is  more  full,  and  doth  expound 
the  words  of  the  Grand  Charter,  and  is  thus : 
'  Whereas  it  is  contained  in  the  Grand  Charter 
'  of  the  franchises  of  England,  that  no  freeman 
'  shall  beiDipnsDned,nor()utout  of  his  freeboid, 

*  nor  free  custom,  unless  it  be  by  the  law  of  the 
''laud;  it  is  awarded,  assented,  and  established, 
'  that  from  hence  none  shall  be  taken  by  pe- 
'  tiiion  or  suggestion,  made  loour  lord  (be  king, 
'  or  to  his  cnuncil,  unless  it  be  by  Indictment, 
'  or  preseuttuent  uf  his  good  and  lawful  people 
'  of  the  same  neighbourhood ;  which  such  deeds 
'  shall  he  done  in  due  raaaner,  or  by  process 

■  madb  by  writ  original  at  the  common  law,  nor 
<  that  nonebeouted  of  his  franchises,  nor  of  his 

*  freehold,  unless  he  be  duly  brought  in  to  an- 
'  swer,  and  fore-judited  ofihe  same  by  the  course 
'  of  the  law;  and  if  any  thing  be  done  against 

■  the  same,  it  shall  be  redressnl  and  hulden  for 

*  nought ' 

Out  of  this  Statute  I  obserre,  that  what  in 
Magna  Cbnrta,  and  the  preamble  of  the  Statute 
ii  termed'  by  thelawof^thelimd,'isin  the  body 
of  the  Act  expounded  lo  be  by  process  made 
by  the  writ  original  at  the  common  law,  which 
is  R  plain  interpretation  of  the  words '  law  of 

*  th«  land '  in  the  Grand  Chnrier.  And  I  note 
that  iliis  law  was  made  upon  the  ctimniltmcnt 
ofdiversco  tbe  Tower,  no  kuan  yet  kuoweth  fur 

38  E.  3,  c.  3,  it  is  more  direct,  this  liberty 
being  followed  with  fresh  gult  hy  the  subject, 
where  the  words  are  not  many,  but  very  full  and 
significant;  '  That  no  man,  of  what  stale  or  con- 
'  ditinn  soever  he  be,  shall  be  put  out  of  hit 
'  lundt  or  lenemenls,  itor  taken,  nor  impiisoned, 

*  nor  disinherited,  nor  put  to  death,  without  he 
'bebt-oughtiiitoaiuwerl)}  due  process  of  law.' 


rendered  by  due  process 
of  the  law. 

se  £.  3,  Rot.  Pari.  n.  9.      Amonpt  tbe  pe- 

XJtions  of  tbe  commons,  one  of  them  being  tran- 
slated into  English  outof  French,  is  ibus;  firat, 
that  the  Great  Charter,  and  the  Charter  of  the 
Forest,  and  other  Statutes  made  in  liistime,  and 
the  time  ot' his  progenitors,  for  tlw  profit  of  bim, 
and  his  commonalty,  be  well  and  Grmly  kept; 
and  put  in  due  execution,  without  putting  di^ 
turbance,  or  making  arrest  contrary  to  them  bj 
special  command,  or  in  other  manner. 

I'be  ansn  er  to  the  Petition,  w  hich  makes  it  an 
act  of  parliament,  is, '  Our  lord  the  king,  by  the  - 
'  assent  of  the  prelates,  dukes,  earls,  barons,  and 
'  tbe  comrooualty,  hatli  ordained  and  establish* 

■  ed,  that  the  said  Charters  and  Sracaies  be  helrf, 
._.!_  J,  according  to  the  said 
observable,  that  the  Statute* 

were  to  be  put  in  execution  according  to  tb« 
said  Pttiiioii,  which  is,  that  no  arrest  sliould  be 
made  contrary  to  tbe  Statutes,  by  special  com- 
mand. This  concludes  the  question,  and  is  of 
01  great  furce  as  if  it  were  printed,  for  tbe  Par- 
liament iloll  is  tbe  true  warrant  of  an  act,  and 
many  are  omitted  out  of  tbe  Books,  that  are 
extant  in  the  Itoll. 

36  E.  3,  Hot.  Purl.  n.  23,  eiplaineth  it  fu^ 
iher;  for  there  the  Petition  is, '  Whereas  it  is 
<  contained  in  the  Grand  Charter  and  olber 
*■  Statutes,  that  no  man  be  taken  ur  imprisoned 
'  by  special  command  without  Indictment,  or 
'  other  due  process  to  be  made  by  the  law,  and 
'oftentimes  it  hath  been,  and  yet  is,  many  are 
'  hindered,  taken  and  imprisoned  without  In- 
'  dictnient,  ur  other  process  made  by  the  law 
'  upon  them,  as  well  of  things  done  out  of  the 
'  Fomc  of  the  king,  as  for  other  ibings ;  that  it 
'  Mould  iheretbre  please  our  said  lord  to  com- 
*  mand  those  to  he  delivered,  wtiich  are  so  taken 

■  by  special  command  against  the  form  of  tb« 
'  Charter  and  Statntes  as  aforesaid.' 

TIlc  Answer  is, '  The  king  is  pleased,  that  if 
'  any  man  find  himsetf  gricTed,  that  he  come 
'  and  mnke  his  complaint,  and  right  shall  be 
'  done  unto  hitn.'  3T  E.  3,  c.  18,  agreeth  in 
substance  with  them :  it  said),  *  'Though  it  b* 
'  contained  in  the  Great  Charter,  that  nO  man 
'  be  taken  nor  imprisoned,  nor  put  out  of  his 
'  freehuld  without  proi^ess  of  the  law;  aere^e- 
'  less  divers  people  mnke  false  suggestio.is  to  the 
'  king  Itimwif,  as  n  eti  ibr  malice  as  otbcrwiae, 
'  whereat  the  king  is  often  grieved,  and  divers 
'  of  tbe  rfalm  put  in  damage,  against  the  fbn« 
'  ofihessmeCharter;  wherefore  it  is  ordained, 
'  tliatoll  they  which  makesuchsuggestians,shaU 
'  be  sent  with  the  same  suggestions,  to  tbe 
'  Chancellor,  Treasurer,  nnd  his  grand  council, 
'  and  tliat  they  there  find  surety  to  pursue  their 
'  suggestions,  and  incur  the  same  pain  that  the 
'  other  should  have  bad,  if  he  were  attainted,  in 
'  case  that  the  suggestion  be  found  evil ;  and 
'  that  then  process  of  law  be  marie  against 
'  tliemtvitboutbeing  taken  or  imprisoned,a|    '     ' 


69]  STATE  TRIAI£,  S  CuASLif  I.  1038.— <k  LAerty  t^tftt  Subject. 

duter  n  cxplaiaed  lo  be  withou  {iroceia  of 


[90 


11 E.  3,  c  13.  At  the  r«quMt  of  the  Com- 
Bou  bj  their  felition  pat  forth  in  xhw  paMia- 
mcnt,  to  «cbe«  miichief  and  damage  done  to 
direraof  his  comrDOns  by  fntie  nccusers,  njiicb 
sHratimes  have  made  tlieir  accusations,  more 
for  rcrenjie  and  singiitnr  benelir,  than  for  the 
profit  of  the  king,  or  of  his  peuple;  of  which  se- 
cnstd  ppnons  some  have  been  tnlLcn  and  caused 
to  come  before  ihe  king's  council  b;  writ,  and 
«be™ije  upon  (-rievous  pains  ngainst  the  law  ; 
it  is  ascnicd  nad  accorded  for  the  good  goTem- 
tDce  of  the  commons,  That  no  man  be  put  to 
iBswer  witbout  presentment  befiire  juaticei  or 
matter  of  record,  or  by  due  process  and  writ 
i>r^ii,  according  to  the  old  law  of  the  land  : 
Bad  if  any  thing  from  hence  be  done  to  (he  con- 
tMrj,  it  shall  t^  void  in  the  law,  and  bolden  for 

But  this  is  better  in  ihc  Parliament  Roll, 
«ieie  the  Petition  and' Answer,  which  m* Lei 
ilie  Acr,  are  set  donm  at  large,  43  E.  3,  Rot. 
Pdri.  n.  13. 

TAt  Fetitioa. 
'Item.  Because  that  many  of  your  com- 
'imnsare  hurt  and  destroyed  l>y  false  accu- 
'Kn,  who  Dikke  their  accusatiims  more  for 
'  their  revenge  and  particular  gain,  than  for  the 
'profit  of  iho  king,  or  of  his  people  :  aod  those 
'  dm  are  accused  by  theio,  some  aro  tateo, 
'  and  others  are  made  to  come  before  the 
'  ling's  coancil  by  writ,  or  other  commaad- 

*  ment  of  ttie  king,  upon  grievous  pains,  con- 
'  Inry  to  tlie  Inw  :  That  it  would  please  oar 
'  lord  the  king,  and  bis  good  council,  tbr  the 
'juK  gnYenunenl  of  his  people,  to  ordaJn,  that 

■'if  hereoiier  any  accuser  propose  any  matter 
'  for  the  profit  olthe  king,  that  the  same  matter 
'  be  tent  to  the  justices  of  tbe  one  bench  or  of 
'  the  other,  or  tbe  Assizes,  to  be  enquired  and 
'detenninad  accordiog  to  the  laiv;  and  if  it 
'  caaceni  the  accuser  or  party,  that  be  lake  his 
'  salt  at  the  Common  Law;  and  tliaC  no  man 
'  be  put  to  answer  without  presentnient  before 
'  the  justices  or  matter  of  leoord,  and  by  dke 
'  prosen  and  on^oal  writ,  according  to  the 
'ajicient  law  of  the  land.  And  if  any  (bing 
'  henceforward  be  done  to  tbe  contrary,  that  it 

*  be  mid  in  law,  and  beM  for  error.' 

Here  by  due  prooesa  and  original  writ,  aC' 
tording  to  tbe  ancient  law  of  tbe  land,  is  meant 
tin  same  thing,  as  '  per  legeia  term,'  in  Magna 
CbsTta;  and  the  abuse  waa,  they  were  put  to 
■acver  by  the  commandment  uf  the  klag. 
Tilt  King't  Atuaer  a  thm : 

'  Because  that  this  Article  is  on  Article  of 

*  ibe  Grand  Charter,  the  king  willeth  that  this 
'  be  done,  as  the  Petition  dolh  demaud.'  By 
•Ws  appeareth  that  '  per  Itgpm  terr*,'  in 
Magna  Cbarta,  ii  meant  by  due  process  of  the 
kw. 

Tbos  your- lordships  hHTehtnrd  Acts  of  Pm-' 
^•ment  in  the  point.  But  the  Statute  of  We*t- 
nitistei,  1.  c.  lb,  is  utjred  to  dlspniTe  this  opi- 
nion, where  it  it  eipresdy  said,  TlMt  a  man  ii 


not  repleriable,  who  is  i^immitted  by  the  com- 
mand of  the  king ;  therefore  tbe  eommand  of 
the  king,  without  any  cause  sbeived,  is  suflicieiK 
to  commit  a  man  to  prison.  And  because  the 
streogth  of  the-Arguiaetit  may  appear,  and  the 
Answer  be  better  UHderstood,  1  will  read  the 
words  of  the  Statute,  which  are  thus: 
V  '  And  forasmuch  as  sheriSsnud  others,  wbicli 
'  have  tnken  and  kept  in  prison  persons  detect- 
'  ed  forlelouy,  and  otientimcs  have  let  out  by 
'  replevin  such  as  were  not  replevinble,  and 
'  have  kept  in  prison  such  as  were  repleviable, 
'  becanse  ihey  would  gain 'of  the  one  party, 
'  and  grieve  the  other  ;<  and  'forasmuch  as  be- 
'  fore  this  time  it  was  not  certainly  determined 
'  what  persons  were  repleviable,  and  what  not, 
'  but  only  those  that  were  taken  for  tbe  death  of 
'  a  mitn,  or  by  tbe  cammindment  of  the  king, 
'  or  cf  his  justices,  or  for  the  forebt ;  it  is  pro- 

■  vided,  and  by  ^e  king  commanded,  that  such 
'  prisoners  ai  were  bafore  outlawed,  end  they 

■  which  have  abjured  the  realm,  provera,  ana 
'  such  as  he  taken  vvi^  the  maimer,  and  thoBc 
'  which  have  broken  ihe  king's  prison,  thieves 

■  openly  defamed  and  known,  end  such  as  be 
'appealed  by  approvers;  bo  long  as  the  np- 
'  provers  are  living,  and  if  they  be  not  of  good 
'  name,  and  such  as  bs  taken  for  burning  of 
'  houses  frkmioosly  done,  or  ftlse  money,  ot 
'  for  connterfdting  the  king's  seal,  or  persons 
'  exeommnnictile  taken  at  the  request  of  the 
'  bishop,  or  formauifestofiences,  orfor  treason 
'  touchiDg  the  kine  himself,  shall  be  in  no  wise 
'  repleriable  by  the  common  writ,  or  wtthout 

But  sui^h  OS  be  indicted  of  larceny  by  i^ 
quests  taken  before  sheriffs  or  beiliSii  by  ibejr 
ofKce,  or  of  light  suspicion,  or  of  petty  larceny, 
that  anoanteth  not  ahoTe  the  value  of  nrelve- 

Gnce,  if  they  were  not  guilty  of  some  otiier 
neDy  aforetrme,  or  guilty  of  receipt  of  fe- 
lons, or  of  commandment,  or  of  force,  or  of 
aid  of  felony  done,  or  guilty  of  some  other 
trespass,  for  which  one  ought  not  to  lose  either 
life  or  member ;  and  a  man  appealed  by  an  an- 

t rover,  after  the  death  of  the  approver ;  if  he 
e  no  common  thief  or  defemed,  shall  from 
henceforth  be  let  out  by  sufficient  surety,  wher- 
of  die  sheriff  will  be  answerable,  and  that  witl»- 
out  giving  aitglit  of  their  goods.  And  if  the 
sheriff,  or  any  other,  let  any  go  at  large,  by 
surety,  ihatare  not  repleriable,  if  he  be  sheriff 
or  constable,  nr  any  other  bailiff,  or  audi  as 
hath  a  fee,  which  hath  keepine  of  prisons,  and 
thereof  be  attainted,  he  shall  lose  his  office  and 
fee  for  erer.  And  if  tbe  undei^sheri^  con- 
stable or  bailiff,  or  such  as  hath,  fee  for  kceptiw 
of  prisons,  do  it  contrary  to  the  will  of  his  ford, 
or  any  other  bailiff  being  not  of  fee,  tbey  ati^i 
have  three  years  impriaomcnt,  and  make  m  fine 
at  the  kings  pleasare;  and  if  any  man  widt- 
hold  prisoner!  repleviable,  ^er  that  they  have 
ofieted  sufficient  snre^,  he  shall  pay  a  grievoas 
amercement  to  the  king;  and  if  be  take  wny 
reward  fortbe  deliverance  of  such,  he  shall  pay 
double  to  the  prisoner,  and  also  ifaall  pay  a 
gnevoui  Rnsrcemnt  to  the-  king. 


gij    STATE  TRIALS,  SChakluI.  tan-i.—Jh-oatdinp  in  ParliamaU  rdaiittg 
The  AniMr.  Sheriff 


[« 


It  miiat  he  ack  now  lodged,  that  n  man  taken 
b^  itie  com^iHQdinent  of  the  king  ii  not  repl< 
viable,  for  lo  are  the  exyieo  words  of  this  Sii 
tutei  but  this  niakcth  aotliing  sgniiwC  [he  De- 
daration  of  the  Uoute  of  ComnioDs ;  fur  thev 
Mj  not,  iIk  ■beritr  may  replevy  such  a  one  by 
■uretics,  tcilUtt  mtmuaiplora,  but  that  he  is 
.  bailable  by  the  kiufi's  court  ol  justice  t  for  tlie 
better  apprehend  in  v  \vhereiif,  it  is  to  be  known, 
that  there  is  a  dillcrcnce  between  repleviable, 
wliich  15  always  by  the  ibei-iff  upon  pledges  or 
sureties. given,  aud  bailable,  which  is  by  a  court 
of  record,  where  the  prisoner  is  delivered  to 
his  bail,  and  ibey  are  his  jnolers,  and  may  im- 
prison him,  aod  shall  suffer  fur  him  body  for 
■  body,  as  appcareth  33  &  36  Edw.  3,  tilob 
Malnprize  12  &  13,  where  the  difference  lie- 
twixt  B;iil  and  Mainprise  is  expressly  taken. 
And  if  the  words  of  ihtj  Statute  themselves  be 
obserred,  it  will  appear  (ihiinly,  that  it  eitends 
to  the  Sheriff  aud  other  inferior  officera,  aud 
doth  not  bind  tlie  linnds  of  the  ju(%is. 

He  Preamble,  which  is  tbe  key  that  openeth 
the  entrance  tutu  the  ineaning  of  ibe  malierti 
of  ifie  Lavr,  is,  '  Ikirasmuch  ns  Sberifis  and 
'  others  have  taken  and  kept  la  prison  persons 
'  delected  of  felony,'  Out  of  these  words  I  ob- 
serve, that  it  nomitwteih  Sheriffs,  and  than  if 
the  Judges  should  be  included,  they  must  be 
cumprefieudod  under  that  general  word, 'others;' 
ithich  doth  nol-rintend  to  tbuseofan  higher 
iBok,  buitoinferiors.forihe  best  by  ail  courses 
isliiBt  to  be  named.  And  therefore  if  a  man 
biiti;  a  Writ  of  Customs  and  SerFiccs,  and 
name  Rents  and  other  things,  the  general  «h:ill 
not  include  HomaMC,  which  is  a  personal  scr- 
tice,  and  of  an  liiglier  nature,  but  it  sball 
extend  to  ordinary  annual  service,  31  K.  1, 
droll  6r.  So  the  Statute  of  13  Elra.  c.  10, 
which  bceinneth  with  Colleges,  De.ins  and 
Cliapters,  Parsons,  Vicars,  and  concltides  with 
these  words,  ■  and  others  having  spiritual  Pro- 
*  motions,'  shall  not  comprehend  Bishops  that 
are  of  an  higher  de(rree,  as  appeareth  in  the 
■rchhishop  of  Canterbury's  Cnse,  reported  bj 
sir  Edw.  Coke,  hb.  S,  foi.  4fl,  B. 

And  thus  much  is  ejiplaiiied  in  tba  very 
Statute  towartls  tlie  end,  when  it  dofh  enu- 
merate tho^  who  «ero  meant  by  the  word, 
'  others,'  namely,  Under-SUeriffs,  Constables, 
fiailiSs,  &c. 

'A^n,  tlie  words  are,  'SherilK  and  others 
'  which  have  taken  and  kepi  in  prison.'  Now 
evetY  man  knuwcth.  Judges  do  ncitlier  arrtst, 
nor  keep  men  in  prison ;  that  is  the  office  of 
Slierift  and  other  iTifcrior  ministers.  There- 
fore this  Statute  meant  such  only,  and  not 
Judges. 

The  words  are  further,  That  they  let  out  by 
replevin  such  ns  ure  not  replevlable,  that  is  the 
proper  language  fnr  n  SherilT;  nay,  mure  ex- 
press afterward  in  the  body  of  ihe  Statute,  that 
kuch  ns  are  there  mentioned,  shiiU-in  nonise 
be  repleiiable  ^J  the  common  Writ,  wliich  is 
.' De  homine  rvple"iniido,'  and  is  directed  tn 
tbe  Sheriff,  nor  witbout  writ,  which  is  by  the 


X  Meio.  But  that  which  receives  no  - 
s  this,  that  the  command  of  the  Jus- 
tices, who  derive  ilieir  auihoritj  from  the 
crown,  is  there  equal  as  to  this  purpose  with 
ihe  command  of  the  king.  And  tlierefore  by 
all  reasonable  construction,  it  must  needs  re- 
late to  odicers  ttiat  are  subordinate  to  both,  as 
sberitfe,  under-sheriffs,  bailiffs,  constables,  and 
thelike.  And  it  iverea  h a r&h exposition  to  say, 
that  the  Justices  miilit  not  dischari^e  their  owd 
command,  and  yet  ihat  reason  would  concludi! 
as  much;  and  that  this  was  meantoftlieslieriff 
and  other  ministers  of  Justice,  appears  hy  tlie 
Recital,  37  Edw.  1,  c.  3,  anri  likewise  by  Fleta, 
a  Manuscript,  so  i;illed,  because  the  autliur 
lay  in  the  Fleet  when  he  made  the  BooL  ;  for 
he,  I.  9,  c.  59,  in  his  Chapter  of  Toms,  and 
the  Views  of  the  tluudred  Courts  in  tbe  Coun- 
try, setteth  down  tlie  Articles  of  the  Chaises 
that  are  there  to  be  inquired  of;  amongst 
nhich,  one  of  them  is  '  De  reptegiabilibus  m- 
'  juste  detentis  et  irreplegiabilibus  diinissle;' 
which  cannot  be  meant  of  not  bailuig  by  the 
Justices;  for  what  have  the  iufeiior  courts  in 
the  coiiutry  to  do  with  the  acts  ofihe  Juslicesf 
And  to  make  that  more  plain,  he  settelb 
down  in  thatChapCer,  that  concerneih  Sheriffs 
only,  the  very  statute  of  Westminster  1,  which 
he  translates  verbatim  oat  of  tbe  French  Into 
the  Latin ;  save  that  he  renders  taken  by  (be 
command  of  the  Justices,  thus,  *  per  judicium 
'  Justicinrioruio;'  and  his  Preface  to  the  Sta> 
tu;e  pla'uily  sheweth,  that  he  understood  It  of 
Replevin  hy  Sheriffs ;  for  lie  saith,  <  Qui  deheut 
'  per  plcf;ios  dimitti,  qui  nan  declamt  hoc  Sta- 
'  tutum ;'  and  '  per  plt-nios'  is  befure  the  Sheriff. 
But  fi>r  direct  Authority,  It  is  tbe  opinioo  of 
Newton,  chief  justice,  33  Hen.  6,  46,  where 
his  words  are  these :  '  It  cannot  be  intended 
'  that  the  Sheriff  did  suffer  him  to  go  at  large 
'  by  MalnDriie ;  fur  wlicre  one  is  taken  by  tho 
'  writ  of  the  kine,  or  the  commandment  of  the 
'  king,  he  is  irrepleviable ;  but  in  such  case  his 
'  Iriends  may  coma  to  the  Justices  from  hun  if 
'  be  he  arrested,  and  purchase  a  Supersedeas.' 
This  Judge  concludes,  thiit  the  sberilf  cannot 
deliver  him  that  is  taken  by  the  command  of 
the  king,  for  that  he  is  irrepleviable,  which  is 
the  very  word  of  the  statute  :  but,  soJth  he,  his 
friends  may  come  to  tlie  Justices,  and  purchase 
D  Supentdtat.  So  he  declares  the  very  ques- 
tion, that  the  Sheriff  had  no  power,  but  riie 
Justices  had  power  to  deliver  him  that  is  corn-  ~ 
mitted  by  the  king's  command,  and  both  ibe 
antinnt  and  modern  practice  manifest  as  much : 
for  he  that  is  taken  for  the  death  of  a  man,  or 
or  the  Forest,  is  uut  repleviable  by  the  sherllT, 
r'ei  they  aie  ordinarily  haded  by  the  Jusiicei, 
tiid  were  hy  the  king's  writs  directed  tj  tbe 
>heril&  in  the  times  of  Edw.  1  nnd  i,  as  appears 
n  the  close  RuUs,  which  could  not  be  dune  if 
they  were  not  bailable.  And  it  is  every  day'a 
experience,  that  the  Jusliccs  of  tlie  Xiil<;s- 
beoch  do  hall  tor  murder,  nnd  for  olfencts  duns 
in  the  Forest  which  they  could  not  do,  it'  the 
nord  *  irrc[ilc  viable,'  in  Wesiminster  1,  wer« 
meant  of  the  Justices,  as  nell  usuf  the  ShtciOii. 


93] 


STATE  TRIALS,  SCiiAtusI.  ]62S^iieLiber^<iftheSuh;ai 


[94. 


For  Aatboritid  that  tiave  been  offered  to 
pniTe  the  coDtrHiy,  thpv  are  in  number  chrea. 
The  6ratu  21  fidw.  3,  Rot.  9,  ntiich  also  is  iu 
the  Book  of  Picas  in  Pnrliament  at  the  Tower, 
npon  an  action  tliere  liruught,  (bl.  44.  It  ia 
Dot  on  act  of  parliitment,  but  a  resolution  in 
pariiameot  upon  sn  acnoii  there  brought,  which 
wai  usual  in  those  limes :  and  the  case  is,  that 
Strphen  Ribez,  the  sheriff  of  the  couDlies  of 
Leiccuer  and  \Va™ick,  was  questioned,  for 
that  he  had  let  at  large  by  suretj,  nmansst 
others,  one  William,  tlie  sun  of  Wnller  le  Pe- 
soDs,  ^laintt  the  will  and  command  of  the 
ling,  wnereas  the  king  had  commanded  him  bj 
letten  under  the  privy-seal,  that  he  should  do 
DO  favour  to  any  man  that  van  committed  by 
tbeearlof  Warwick,  as  that  man  was;  where- 
nnto  the  aherifF  answered,  that  he  did  it  at  the 
request  of  some  of  the  king's  household  opon 
their  letters;  and  because  the  sheriff  did  ac- 
bncnrledge  the  receipt  of  the  kind's  leltcn, 
tbereupou  he  was  committed  to  prison  accord- 
incto  the  form  of  the  statute. 

To  thia  I  answer,  the  sheriff  was  jnstlj 
punished,  for  that  he  is  expressly  bounil  hj  the 
ktatote  of  Westminster  1,'  which  was  agreed 
from  the  beginning ;  but  this  is  nf>prtiof,  that 
ibe  Judges  tiad  no  power  to  bail  thii  mnn. 

The  next  Autbonty  is  33  Hen.  6,  in  the  Court 
nf  Common  Pleas,  tbi.  98,  b.  S9,  where  Robert 
Pojuings,  esq.  was  brought  to.  tl>e  bar  upon  a 
Capias,  and  was  retnnicd,  that  he  was  cotn- 
mitted  '  per  duos  de  concilio,'  (I  believe  it  is 
-  nispriated  for'  dnos  de  cinciliOt'i.  e.  'dnminoa 
*  de  c^ncilio,'  which  is  strongest  against  what  I 
TDainiHin) '  pro  diver«is  cnuais  regem  tangentib.' 
Ami  be  made  an  attorney  there  in  an  action, 
whence  it  is  inferred,  that  the  return  was  good, 
and  the  party  could  not  be  delivered. 

To  this  ihe  answer  is  plain :  1.  No  opinion 
ii  delivered  in  that  book,  one  way  or  other. 


S.  It  appears  eiprcasly,  that  be  was  brought 
thither  to  be  charged  in  an  action  of  debt,  at 
another  mBn'a.juit,  no  deiire  of  hia  own  to  be 
deKvered,  or  bailed ;  and  then  if  be  were  re- 
manded, it  is  no  way  material  to  the  question 
in  band.  But  that  which  is  most  relied  upon, 
is  the  (pinion  of  Stamf.  in  his  Book  of  Pleal 
of  the  Crown,  lib.  i,  c.  18,  f.  73,  73,  in  his 
Chapter  of  Mainpriie,  where  he  reciieth  the 
Statute -of  Westm.  1,  c  15,  and  then  saith 
thus:  '  By  this  Stalate  it  appears,  that  in  four 

*  cases  at  the  Common  Law  a  man  wm  not  re- 
'pleviable;  to-wit,  those  that  were  taken  for 

'  '  the  death  of  a  man,  by  the  comniaml  of  the 
'  king,  or  bis  justices,  or  for  the  forest ;'  thus 
far  he  is  mou  right.  Then  he  goeth  un,  and 
tahb,  '  As  to  the  command  of  the  king,  that  is 
'  andentoodby  the  command  of  his  own  mniith, 
■or  his  council,  which  it  incorporated  unto 

*  luin,  and  spake  with  his  month,  or  otherwise 
'  eve™  Writ  or  Capias  to  take  a  man,  which  is 
'  tbeking'scommand,  woatd  be  as  much;  and 
'  as  to  the  command  of  the  Justices,  that  is 
'  tnaant  Umi  mUolal*  cOHHBamlnent,  br  if  it 


'  be  b^  rfieirordinary  commandment,  be  is  re- 
'  [ileviable  by  the  siieritf,  if  it  be  not  in  some 
'  of  the  cases  prohibiltd  by  the  statute.' 

The  answer  that  I  gave  unto  this  ia,  that 
Stamford  had  said  nothing  whether  n  man  may 
he  committed  witliout  cause  hy  the  king's  com- 
mand, or  whether  the  Judges  ought  not  to  bail 
him  in  such  case,  only  that  such  a  one  is  not 
repleviable;  which  is  agreed,  for  that  belong* 
tu  the  SheriS.  And  because  no  man  shouhi 
think  he  meant  any  such  tliine,  be  concludes 
the  whole  sentence  touching  the  command  of 
the  King  and  the  Justices,  ihnt  one  committed 
by  the  orditiary  command  nf  the  justice,  is  re- 
pleffiable  by  the  sheriff;  or  at  least  it  nppean 
not  that  he  meant  that  a  man  committed  bj 
the  king,  or  by  the  ^rivy-council  without  cause, 
should  not  bo  bailable  by  the  justices,  and  he 
liath  given  no  opinion  m  thia  cise;  what  be 
would  have  said,  if  he  had  been  asked  the  ques- 
tion, cannot  be  knann,  Neither  doth  it  appear, 
that,  by  any  ihin^  tbat  he  hath  said,  he  meant 
any  auch  thing  as  would  be  inferred  out  of  him. 
And  now,  my  lords,  I  have  performed  the  com- 
mands nf  the  Commons,  and  as  I  conceive  shall 
cle^u'  tJie  declaration  of  persona]  Liberty,  an 
ancient  and  undoubted  truth,  fortified  with 
•even  acts  of  parliament,  nnd  not  opposed  by 
any  statute  or  authority  of  law  whatsoever. — 
See  Littleton's  Precedents  after  Mr.  Selden's. 

Ur.  Seldek's  AacuMCNT. 
My  lords;  Your  lordships  have  lieard  from 
the  geutleman  tbat  last  spake,  a  great  part  of 
the  grounds  upon  which  tiie  House  of  Com- 
mons,  upon  ntature  deliberation,  proceeded  to 
that  clear  Hesolution  touchiug  the  llight  of  the 
liberty  of  their  Persons.    The  many  acts  of 

Iiarlinments,  which  arc  the  written  laws  of  the 
and,  and  are  expressly  in  tlie  point,  have  been 
read  and  opened,  and  such  objections  as  have 
been  by  fomc  made  to  them,  and  some  objec- 
tions also  made  out  of  another  act  of  parlia- 
ment, have  been  cleared  nnd  answered.  It 
may  seem  now  perhaps,  my  lords,  that  little 
remains  needful  to  he  further  added,  for  the  ia> 
farcement  and  maintenance  of  so  fundamental 
and  established  a  Kiglit  and  Liberty  belonging 
to  every  freeman  of  the  kin):dom.  But  in  the 
examination  of  questions  of  Law  of  Risbt, 
besides  the  laws  or  acts  of  piirlianient,  Uiat 
ouelit  chiefly  to  direct  and  reguiute  every  man's 
judiiment,  whatsoever  hath  been  put  in  practica 
to  the  contrary,  there  are  comiuoaiy  used  also 
former  Judgments,  or  Precedents,  and  indeed 
have  been  BO  used  sometimes,  that  (he  viieight 
:ason,  of  law,  and  of  acts  of  parliament, 
hath  been  laid  bv,  and  resolutions  have  been 
made,  and  that  in  this  very  point,  only  ujion 
the  interpretation  and  apprehension  of  prece- 
dents. I?recedents,  my  lords,  are  good  media, 
or  proofs  of  illustration  orcaiiSrmatian,  where 
they  agree  with  the  express  law:  but  they  can 
T  be  proof  enough  to  overthrow  any  one 
,  much  less  seven  several  actsof  parliament, 
as  the  number  of  them  is  for  the  point.  The  - 
House  of  Commoos  tbetefore  taking  into  co»- 


•Mention,  tlMit  in  thi*  quntioa,  bctnf  of  to 
liigh  a  nature,  that  never  anj  exceeded  it  in 
mn  J  court  of  juwiea  wluttoerer,  all  the  leveiml 
wKjs  tt(  jutt  caamiaatioii  of  the  truth  sboQld 
be  Died,  have  klM  most  carefully  udbnned 
themselTei  of  all  former  JudgoHmts  and  Prece- 
doots  coocenaing  thi^  great  point  either  waj, 
and  bftia  been  no  less  careful  of  the  due  pri- 


95]    STATETRIAUS.  3Crau»I.  1028 Pr»xi£i^mParliMmUretaii«gii>    [H 

thiif  in  tke  laws  of  tbii  land,  a*  a  petiiion  of 
r^t  to  be  uied  in  such  cbmi  fbr  libertj  of.thc 
uenon,  nur  is  ibere  aiij  legal  caonie  for  ^n- 
largonent  to  be  token  m  luch  casei  i  howw- 
•*er  the  cantrarj'  liath  upon  no  ground  or 
colour  of  lav  heea  pretended.  Now,  my'lonli, 
if  an;  man  be  so  imprisoned  bjr  nnj  wen  com' 
maud,  or  oiberwise,  in  nnj  prison  wbatuevec 
throngb  England,  and  desire  by  iiimself,  or  anjr  - 
other  in  hit  behalf,  this  writ  of  UntieasUocpul 
for  ibe  purpose  in  ibe  court  uf  king's-bench, 
the  writ  i»  to  be  granted  to  him,  and  ought  aot 
10  be  denied  him,  rvo  otherwise  than  anotJiei 
ordinnrj  original  writ  iu  the  cliaocerf,  or  other 
common  process  of  law,  maj  be  denied ;  which 
amongst  other  ihiivgt'the  bouu  resolved  tbo, 
upon  mature  deliberation,  and  I  was  com- 
manded to  let  jour  lordships  know  so  much. 
This  writ  is  directed  to  the  keeper  of  the  pri- 
snn,  in  whose  custody  the  prisoner  remaus, 
commanding  liini  chat  after  a  certain  day,  ke 
bring  in  the  body  of  tbe  prisonei^  '  ad  sub- 
'jiciend.  et  recipiend.  julta  quod  curia  caa> 
'  siileniveiit,  &c  una  cum  causa  captioDis  et 
'  detentionis  ;'  and  ofienliines  ■  una  cum  causa 
'  detentionis'  only,  '  captionis*  being  oroiited. 
The  beeper  of  the  prison  thereupon  retunu 
by  what  warrant  be  demins  tlie  prisoner,  and 
with  hia  return  filed  to  hli  writ,  brings  the  pri- 
•onet  lo  the  bar  at  the  lime  appointed;  wbea 
the  return  is  thus  made,  tbe  court  judgcth  of. 
the  suiiraency  orintuScieacy  of  it,  only  out  of 
the  body  of  it,  without  having  respect  unto  any 
other  thing  whatsoever :  that  is,  they  suppose 
(he  return  lo  ba  true  whatsoever  it  be:  if  it  be 
false,  tbe  prisoner  may  have  his  actioa  on  the 
case  against  the  gaoler  that  broi^ht  bim.  Now, 
my  lords,  when  [lie  prisoner  comes  thus  to  tht 
bar,  if  he  desire  to  be  bailed,  and  that  the  coutt 
upon  the  view  of  tbe  return  think  him  in  law 
to  be  bailable,  then  he  is  always  first  taiiea 
from  tbe  keeper  of  the  prison  that  brings  Ua, 
and  committed  to  the  marshal  of  the  KingV 
Bench,  and  afterward*  bailed,  and  tbe  entry 
perprtuailv  is,  '  Committitur  Uariscello  et 
'  postea  iraditur  in  Sail'  ;'  for  tbe  court  never 
bails  any  man,  until  he  lirat  becomes  their  own 
priaoBer,  and  be  '  incustodiaUariecall' of  that 
court  Bat  if  upon  tbe  returo  of  the  Uabess 
Coq>us,  it  appear  to  tbe  court,  that  ihe  pn- 
ight  not  to  be   boiled,  nor  discharged 


ttf  two  kindly  either  merely  matter  of  Record, 
or  else  the  fomer  rcMliuioos  of  the  Judges, 
after  solenin  debate  in  the  point. 

This  point  that  concerns  Precedents,  tbe 
house  of  commons  have  commanded  m«  toure- 
wnt  to  your  lordships,  which  I  shall  is  briefly 
as  I  maVi  so  I  do  it  lailhrully  and  perspicu- 
oyaly.  To  that  end,  my  lords,  before  I  caim 
to  the  particulars  of  any  of  tfaate  Precedents, 
I  ihall  £r*t  remember  lo  your  lordships,  that 
which  will  Mem  ••  ageneral  key  for  the  open- 
ioB  and  true  appreheniioa  of  sll  ihem  of  record, 
without  which  key,  no  man,  nnleta  he  be  versed 
io  the  enDries  aiid  coune  of  the  king's-bcnch, 
can  poinbly  aaderstand  them. 

In  all  cases,  my  lords,  where  any  Right  or 
liberty  betoi^  to  tbe  subjects  by  any  positive 
)bw  written  or  anwritien,  if  there  were  not  also 
■  remedy  by  Inw,  for  the  eajoying  orr^aioing 
(bis  Kicnt  or  liberty,  wb«i  it  is  viohued  or 
taken  Kcnx  him,  tbe  positive  law  were  most 
vain,  and  to  no  purpose;  and  it  were  to  no 
Mrpose  f<>r  any  man  to  have  any  ri^t  in  any 
land  or  other  mberiOnee,  if  there  were  not  n 
known  remedy,  that  is,  an  action  or  writ,  by 
which,  in  some  court  of  onHnary  justice,  be 
night  recover  it.  Andin  ihiscasa  of  R^htis 
Zjbertv  of  Person,  if  there  were  not  a  rnoedv 
in  Ihe  law  for  regaining  it,  when  it  is  reitmined, 
it  were  of  no  purpose  to  ipnk  of  laws,  that 
•rdmi]  it  should  not  be  restrained.  Therefore 
in  this  case  also,  1  ibalt  first  shew  you'  the 
Kmedy  that  every  freeman  is  to  tne  for  the 
Tegaining  of  bis  liberty,  when  he  is  against  law 
ivprisoiuKJ,  thnt  so  upon  the  legal  coarse  and 
ftrm  to  be  held  in  using  that  remedy,  the  pre- 
oedetlCa  or  judgments  upon  it,  fbr  ailjudgmenls 
af  record  rise  ont  of  this  remedy,  may  be  easily 
nnderstoodn  There  are  in  law  diven  remetjies 
lor  inlarging  of  a  freeman  impriirnned,  as  [he 
writs  of  MM  el  ati*,  and  of  A«iu««  replcgiaa^, 
besides  the  common  or  most  known  writs  of 
Habeais  Corpus,  or  '  Corpus  cum  causa,'  as  it 
»  also  called. 

The  first  two  writs  are  to  be  directed  to  the 
■heriEFof  the  county,  and  lie  iu  some  partieolar 
ctMea,  with  which  it  would  be  nntitiiety  fbr  me 
lo  iroable  your  lotdsh^is,  because  they  concern 
not  that  which  is  coonnittcd  f>  my  chaige. 
But  that  Writ  of  Habeu  Corpus  orCorpus  cm 
tmua,  k  tlK  highest  remedy  in  law,  for  any 
Mian  that  ii  imprJeoac^  and  th6  only  remedy 
Ibr  him  that  is  iupnaooeil  by  the  special  aH»- 
■Mild  of  the  king,  or  the  Iwds  of  tbe  Privy- 
Cmdm^  witboat  shewing  ouiae  of  tbe  comnnt- 
wmU:  Deither  is  there  in  tbe  law  any  mch 
ihii^aQr  watthfM  •vcrneatiaBofanyiMk 


from  itae  prison  whence  he  is  broueht,  ilwit  be 
is  remanoed  or  sent  back  again,  there  to  con- 
tinue, until  by  cowse  of  law  be  may  be  deli- 
vered; and  ihe  entry  in  this  case  i*.  '  Remilr 
'  titur  qnoiuquc  secundum  legem  delibaratu* 
*  fuaril,'  or  '  Remittitur,  quousque,'  &c  which 
is  all  one,  and-  the  highest  award  or  judgmtnc 
that  eter  was  or  can  be  given  upon  an  Habeas 
Corpus.  But  if  the  Judges  doubt  only  whe- 
ther in  .law  they  ought  to  take  bim  from  the 
prison  whence  he  oame,  or  give  a  day  to  the 
sheriff  Id  amend  his  writ,  as  otteo  they  do,  tlseK 
they  moand  him  only  during  the  ttma  of  their  . 
doabt,  or  until  Che  sheriff  liath  aineuded  hie 
tetun,  and  the  entry  upon  that  i*  '  Rca 
only,  or  'Beiaittitttr  |>rii«n«  pnad.*  i 


97] 


STATE  TRIADS,  3  Charles  I.  rMB.—lie  LiterlytftlieSa!^. 


Hfij  more.  Anil  so  '  remittitur'  gencmtljr' it 
nf  tar  Icii  luoment  in  tlie  awnrd  apon  xte  Ha- 
beas Corjms,  than  '  remittitur  quousque,  &c. 
iKmever  ihe  vulgar  opinions  raised  out  of  the 
lHt»>  Jutlgiii^nt.  he  to  the  c.iiitraiy.  All  ihcie 
ihin^  are  of  most  known  nnd  constmit  use  iii 
the  Court  ot  KingVBeDch,  as  it  cannot  he 
double't  but  Tour  lordsliips  tvill  ensily  know 
from  [hegmvcHnd  lenrned  my1ard$  thejudges. 
These  twu  coiirsM,  the  one  of  the  entry  of 
'  Ctnnniittitur  Mariicall.  et   |io9iea  iraditnr  in 

*  Balliuiu,'  and  the  nther  '  remittitur  quoujqne 
'  &c.  el   femitiitur'  generall?,  or  '  remiitiiiir 

*  prisons  pr!ed.'  lugither  witJi  the  nature  of 
the  llabe«t  Corpus,  thus  stated ;  it  will  be  eap 
sier  for  me  to  open,  and  your  Irtrdships  to  ob- 
Krve,  whatsoever  shnll  occur  to  die  purpose  in 
tlie  Piecedcnts  of  Itecord,  to  which  I  sIibII 
coDie  now  in  llie.  particular.  But  before  I 
come  to  the  Precedents,  I  am  to  Ik  you  know 
tbe  Resolution  of  the  house  of  coromons  touch- 
ing the  CDlargement  of  a  maa  .committed  by 
the  comramd  of  tde  king,  or  the  privv-couricit, 

.  M  any  other,  witliout  cause  shewed  of  such 
commitment :  it  is  thus ;  That  if  a  freenian  be 
commitCed  or  detained  in  prison,  or  otherwise 
restrained  by  the  command  of  the  king,  the 
privj-council,  or  any  olher,  and  ou  cause  of 
*ach  CQiQTnitineTit,  detainer,  or  restraint  be  ex- 
pressed,  for  wifich  by  law  he  ought  to  be  eoni- 
mitted,  detained  or  restrained  ;  and  the  same 
be  rttnmed  upon  an  Habeas  Corpus  granted 
fijr  the  psrty,  then  he  ought  to  be  delivered 
and  bniled. 

This  Ri^solution,  as  it  is  grounded  upon  the 
•ct*  of  parliiment  already  she^n,  and  the 
muon  or  the  law  of  the  land,  which  is  com- 
mitted to  the  charge  of  another,  and  anon  also 

penei    to  you,  is  streaglheued  also  t)y 

recedents  of  Ilccord. 

he  Precedents  nf  Record  tliat  concern 
this  point  are  of  two  kinds,  for  the  house  of 
commans  haih  infarmed  itself  of  such  ns  con- 
cern it  cither  way.  The  first,  such  ns  shew  ex- 
pressly, tint  persons  cnmniittKl  by  the  .cnm- 
mand  if  the  king,  or  of  the  privy- coniicil,  wiih- 
ont  other  cnnse  shewed,  h.ive  been  enlarped 
Dpon  hail  when  they  prated  it;  whence  it  ap- 

Gars  clearly,  that' by  llie  law,  they  are  ha ila- 
!y  and  so  by  Habeas  Corpus  to  be  set  at  li- 
betty  :  for  though  they  ought  not  to  have  heen 
committed  without  a  cause  shewed  of  the  com- 
milmenl,  yet  it  istrue  thai  the  reverend  judges 
of  this  land  did  pay  such  respect  to  snch  com- 
ritmenu,  by  ihe  command  of  the  king,  or  of 
tbe  lords  of  the  council,  (a4  also  to  the  com- 
mitment sometimes  of  inferior  persons)  that 
npon  the  Habeas  Corpo.s,  tbey  rarely  used  ab- 
solutely to  discharge  the  persons  instantly,  hut 
only  to  enlarge  theni.upon  bail;  which  siiffici- 
eatij  securer  and  preserves  the  Liberty  of  ihe 
Scbject,  Bcordinp!  in  the  la«s  tliat  yonr  iord- 
ihips  have  alrcaily  lieard,  nor  in  any  of  the 
eases  is  there  any  difference  mede  between 
■odi  comniitments  hy  the  lords  of  the  council, 
that  are  incorporated  with  hiih.  The  second 
Ijnd  of  precedeati  of  Recotd  aie,  sitcU  u  have 

Yttf,  Ut.  . 


many  Precedeo 


l*en  pfetendej  to  profe  the  law  to  he  rontrnry, 
and  thai  pcrsoni  so  committed  oughi  not  to  be 
set  at  liberty  upo|i  bail,  and  are  in  the  nature 
of  obiertions  out  of  reccird.  , 

I  sTiulI  deliver  ilicut  sinnmarily  to  your  lord- 
ships with  all  faith,  mid  iilso  true  copiu^of 
them;  out  of  which  it  sIihU  appear  clearly  lo 
your  lordi^lirp!,  tlmt  of  tliot>c  ol  the  hYst  kind, 
there  are  iiu  less  than  twelve,  most  full  and 
directly  in  llie  pnint,  to  prove  that  persons  sa 
com  mi  I  ted  are  to  bedeliiereri  upon  bail;  anrt 
amongst  those  of  ihe  other  kind,  (here  is  not 
so  much  as  one,  not  one,  that  proves  at  all  any 
tiling  to  the  contrary.  I  shall  first,  my  lords, 
go  through  them  of  the  first  kind,  and  so  oU- 
serve  them  to  your  lordships,  ihnt  such  scruples 
ns  have  been  made  upon  them  l>y  some  that 
hove  excepted  agninsi  them,  shall  be  cleared 
also  according  as  I  shall  open   them  Bevemlly. 

The  lirst  of  llie  first  kind  i^  of  E.  Sd's  time, 
it  is  in  Pnsche  18  E.  3,  Ilot.  33.  The  case  na* 
thus :  king  E.  3,  had  commilied  by  Writ,  and 
that  under  his  preat  seal  (as  nyDSt  of  the  kiiig'» 
commands  in  lh'>se  tlhles  were)  one  John  de  ■ 
Bildestoii,  a  clergyman,  to  the  prison  cf  the 
Tower,  without  any  cause  shewed  of  the  conw- 
mitmenl,  The  lieutenant  of  the  Tower  i» 
commanded  to  bring  him  to  the  KingViutncli, 
where  he  is  committed  to  the  marshal ;  hut  tin 
couit  aski  of  the  Lieutenant,  if  there  were  any 
cause  to  keep  tins  Bildestnn  in  prison,,  besides 
that  commitment  of  the  king;  he  answered 
no  ;  whereupon  tlie  ItoU  says,  '  quia  videtur  . 
'  cur.  hre.  pned.  sufficient,  nnn  esse  causom 
'  prxd.  Johan.  de  Bildeston  in  |irison^  dom. 
*  reuis  llie  dciinend.  idem  Johannes  admitlitur 
'  per  manucaptionerii  Willielmi  Je  Wakefield,' 
and  some  others,  where  the  Judgment  of  the 
point  is  fuHy  declared  in  the  very  point. 

The  »ecoiid,  in  the  first  kind  of  precedents  of 
RecoH,  is  in  the  time  of  11.  8,  one  John  Par- 
ker's Case,  v.in>  was  committed  to  the  sheriff 
of  London, '  pro  sccuritate  pacis,'  at  the  suit  of 
one  Brinton,  ■  ac  pro  siispicinnefelouis' com- 
mitted by  liim  in  Gloucestershire,  *  ac  per  man- 
'  daium  doUi.  n.'  he  i*  comoiilMd  to  th* 
marshal  of  llie  Kin|>'s- Bench, '  et  poslea  ista 
'  eodem  termino  traditur  in  BbU",'  Here  were 
otlier  causes  of  the  commitment,  hut  plainly 
one  was  by  the  command  of  the  king,  si^niiied 
to  the  aherifis  of  l^oadon,  of  which  they  took 
nntice:  but  some  htive  Inlerpreted  this,  as  if 
lad    been  for  suspicion  of 


is  bailable;  but  no  man  can  think  so  of  this 
precedeni,  that  observes  the  contest,  and  under- 
stnnds  the  grammar  of  it,  wherein  most  plaittly. 
'  ac  per  niaiidaium  dom.  regis'  hath  no  rafe- 
rence  to  any  other  cause  whHlsoBver,but  is  * 
single  cause  enumeroied  in  the  return  by  itself, 
as  the  record  clearly  sbcwcth  ;  it  is  in  SS  H.  8, 
Sot.  37. 

The  third  is  of  the  same  king's  time,  it  is  3& 
H.&  Rot.  33.  John  Block's  Case;  hewascom- 
mitted  hy  the  lords  of  the  council '  pro  siapi- 
'  cionfl  fiMoniEE  ac  pro  aliii  causis  ilk»  inoventi- 


STATE  TRIALS,  3  Charles  I.  ie2i>—pTpceeiuig»  in  Parliament  relating  to  [lOO 

ThefifU)  ofthii  kind  isof  queeo  Mnry's  lima 
alMj,  it  is  P«sch.  4.  &  5  P.  &  Mar.  Rut.  45. 
the Chsc  orEtUard  No'pott  i  He  wub  lirnught 
iiitD  the  Kiiig's-Bench  \>y  Habeas  Cnrpui  out 
of  tjie  Tower  of  Londun, '  Cum  cauM,  vit.  quod 
'  commissiis  fiiic|)«r  mandncurai  Cuncilii  DnmioB 
'  lte|[iii»,  qui  coniuiitiitur  Marr.  et  iiuuiediure 
'  Craditnr  ill  Balliuiu.'  To  tliis  ilie  like  iinswer 
has  been  made,  as  to  that  otber  case  of  Over- 
toil's next  before  cited  ;  they  saj  that  in  ano- 
ther roll  of  Bnolher  term  of  the  mme  year,  it 
■ppeari  lie  was  in  question  for  suspicion  of 
coming,  ftud  it  is  irue  he  naiso;  but  the  re- 
turn, nndhia  coaunitmentmentionedin  it,  have 
no  reference  to  any  inch  offence,  nor  holh  tha 
bailment  of  him  relation  to  any  ihinj;,  but  ta 
the  absolute  coiDinitinent  by  the  Privyn^iuncil : 
So  ihnt  the  ansvrer  to  the  like  objectioii  mnde 
^^iist  Overton's  Case,  satisfies  this  also. 

I'hc  sixth  of  these  is  of  nueen  Elizabeth'! 
lime,  Mich.  9  El.  Rot.  35.  the  Case  of  Ibo. 
Lnurence ;  tbi)  Laurence  come  in  by  Habcu 
Corpus,  returned  by  the  (hcriDli  of  London,  tu 
be  detained  in  prison  '  per  niNiidat.  Cuncilii 
'  DominB  R^iii*,  qui  coinmittitur  Marr,  tt 
'  super  hoc  trndilur  in  Balliuin.'  -  Ail  objectiDii 
liuth  been  invented  a^ainK  this  also ;  it  hath 
been  laid,  ibit  tbii  mni)  was  pardoned,  and 
indeed  it  appears  lo  in  (be  margin  of  tlie  toll, 
wliere  tlie  vrord  '  pardonatiir'  i>  entered  -.  but 
clearly  his  enl;iT);emen(  by  bail  vru  upon  tha 
b'ldy  of  the  return  only,  uncu  which  that  aot« 
of  pardon  In  tlte  margin  of  tbe  R<ill  liath  no 
relation  at  nil ;  and  can  any  man  think,  lltal  a 
man  pardoned  (lor  what  oHence  soever  it  be) 
might  nut  as  well  be  commitied  for  soma  Arca- 
num, or  ma^[  of  stale,  as  one  that  is  nut  par- 
doiinl,  or  out  of  his  injiocency  tvanh  no  pardon? 

The  serenth  <,f  these  is  in  ibe  same  year,  and 
of  Eoster-tcnn  fallowing:  it  in  P.  9,.Kot.  68, 
Riihert  Coiutable's  Case :  H«  was  broU|tht  by 
Habeas  Corpus  out  of  tbe  Tower  i  and  in  tba 
return  it  appeornh  he  was  cimmitced  there, 
'  per  luaudatuD  privati  Concilii  DnininR  Re- 
■  gina),  qui  cominiititur  Mar.  ct  posiea  isto 
'  eodcm  ter*  traditur  in  ball.'  Tbe  tike  objec- 
tion bath  been  mnde.tu  thii,  as  that  liefore  of 
Lnureuce,  but  tlie  seir-saine  aosner  deaily  ;»- 


'  bus,  qui  commiititur  Mariscallo  et  immediate 
'  ex  gmtin  curix  speciale  traditur  in  Bell'.' 
They  conuniited  him  for  suipicion  of  felony, 
ami  other  causestbemdicreuiiloiuovin)^  Where- 
in there  might  he  matter  of  state,  or  whalsnever 
else  can  be  anpposed,  and  plainly  the  caute  of 
their  eimimilment  is  not  expressed  ;  yet  tlie 
court  bqikrt  liim  without  hnTing  regard  to  these 
unknonn  causes  that  moved  the  lords  of  ll>e 
council.  Rnt  it  has  indeed  gome  dilterence 
front  eiiher  of  those  other  mo  that  precede, 
«nd  fr-iin  the  oihcr  nine  also  that  bltow ;  for 
it  ii  agreed,  that  if  a  cause  be  expressed  in  the 
rNurn,  insomuch  that  ihe  court  cnn  kuow  why 
he  is  coiuinitted,  that  then  he  may  be  bailed, 
liutnnt  if  they  kuow  not  the  cause.  Now  ifn 
man  is  committed  for  a  cause  expressetl, '  ct  pro 
'  aliit  ciiuBJs  dAminos  de  coiicilio  moveiitilHii;' 
certainly  the  court  can  no  more  know  in  (uch  a 
due  wh-it  the  cau^c  Is  than  any  other. 

The  fuunli  of  these  is  in  llie  time  of  queen 
Mary,  it  is  Pasch.  3  &  3.  P.  &  Mar.  Rnt.  S8. 
Overton's  Case :  Ricliard  Overton  was  teiuM- 
ed  upon  an  H^ibeas  Cprpui,  directed  to  tbe 
sberinsof  Londou,  tu  hate  been  committed  and 
detained  '  per  niandatum  prenobilium  domi- 
'  norum  bonornbilis  concilii  dominomm  resis 
'  et  rifiax,qui  citmmittitur  Marr.  et  immediate 
'  traditur  in  Ball'.'  In  aasiter  to  this  prece- 
dent, lir  bjf  way  nf  objection  to  the  force  of  it, 
it  hath  been  sajd,  that  this  Orerton  at  this  lime 
ttood  indi'  l£d  of  High-'Treaiun.  It  is  true,  he 
ivas  so  indicted,  but  tliat  appears  in  another 
Ridl,  that  hath  no  relereuce  to  the  Return,  as 
d>e  Ketuin  hatli  no  reference  to  that  Roll;  yet 
they  that  object  this  against  the  fiirce  of  this 
precedent,  sny,  that  becun^  be  was  indicted  of 
■reason,  tlierettire  ihiugh  he  was  committed  by 
the  coniniHnd  of  the  lordi  of  the  council,  witli- 
out  cause  theweil,  yet  he  was  bailable  for  the 
treason,  Bn<l  upon  that  ivos  here  bailed  :  than 
which  objcctiQii  noiliingis  miire  contrary,  either 
to  law  or  common  reason.  It  is  most  contrary 
til  law,  for  that  clearly  eceiy  Iteturu  is  (n  be 
BT^udged  by  the  court  tint  of  the  body  of  itsetti 
and  not  by  any  other  collateral  or  foreign  re- 
conl  «h;iiEiiev«r.  Therefore  the  matteruf  the 
indictment  here,  cnnnot  in  law  he  cause  of 
bailing  of  the  prisoner ;  and  so  it  is  adverse  to 
alt  common  reason,  that  if  the  objection  be  ad- 
mitted, it  must  of  ueceisity  tbllow.  that  whoso- 
ever tball  be  cimmitted  by  the  kine,  or  privy- 
council,  without  OHuse .'shewed,  aniTbe  not  io- 
dicled  of  treason,  or  tome  otlier  offence,  may 
not  be  enlarged,  by  reaaaii  nf  supposiiion  of 
(natter  of  state.  But  ihat  whosoever  is«o  com- 
mitted, and  withal  stands  so  indicted,  though 
in  another  record,  may  be  enlarged,  whatsoever 
the  matter  of  iiate  be  for  whii^  he  was  com- 
mitted. The  ahiurdiljof  which  assertion  needs. 
not  a  word  fur  further  confutation,  ns  if  any  of 
the  gentipmen  in  the  last  judgnienr,  oucht  tn 
have  been  the  sooner  delivered,  if  he  had  been 
also  indicted  of  tre»!ion;  if  so,  TmliDn  tmd 
Felons  tiiive  the  hi^licst  priiilege  in  personal 
lifaeitv,  and  that  above  all  Qtliersubjecif  of  tbe 


tisfiesfur  ihem  Iwth. 

The  eighth  is  of  the  rame  .queen's  time,  in 
Pasch.  20  Et.  Rot.  Ti,  Jolm  Browning's  Case. 
This  Broanin;  came  by  H.  Corpus  out  of  tha 
Tower,  whither  he  bad  been  committed,  and 
was  returned  to  Imre  been  coininitted,  'per 
'  privnt.  Concil.  Domins  Regine  qu:  t^unniitti- 
'  tur  Mar.  et  posica  isto  eodtm  termino  trnditnr. 
■  in  ball.'  Tu  this  It  hath  leeu  said,  tlintit  was 
done  at  the  C.  Justice  Wraj's  chamber,  and 
lint  in  the  Court:  and  Urns  tbe  nuihority  of  tbe 

Ereccdeiit  hath  been  lessened  or  slif-htcJ.  If  it 
ad  been  done  at  liis  chamber,  it  would  ba*e 
prived  at  leti^t  this  much,  that  sir  Christ. 
Wray,  then  C.  i.  of  the  Khig'i^Bencli,  being  « 
grave,  Jeamed,  and  upruht  judge,  knowing  th« 
law  til  be  so,  did  bail  this  Browning,  anif  en- 
large him,  and  yven  so  far  the  precedent  were 
of  vulueeuough;butitis  plain  that  though  ibo 


STATE  TRIALS,  3  Chai 


101 J 

H.  Curput  were  returnable,  tis  indeed  it  »p- 
pean  in  the  Kecunl  itxlf,  at  hit  cliauiber  iii 
Serjeanti-Inn,  vet  be  unN  commiUed  kijQ  cu 
(h«  KiDg's-Beiicb  {jroteutly,  Knd  left'ri'eil  tl>c 
coD^deratiun  Of  ciil.-irging  tiira  lo  l!ie  cuurt, 
wlio  afterwHrd  did  it:  for  tlie  Record  ms, 
*  Ex  posien  ulo  eodeiQ  tennino  trndilur  id  bull.' 
"licliciiinol   Leof  au 


nnino  trndilur 
enlargement  nt  ilie  C. 

Ju^tilV*s  chamber. 

The  ninih  of  this  first  kind  is  Hill.  40  B. 
Hot.  62,  Edward  HurecDurt'sCuse;  lie  was  iio- 
prisoned  in  the  Gntelioiise,  and  tliai  '  per  do- 
'  niinas  de  privaio  condtio  dominie  regina  pro 
'  cestis  causis  coi  movent ibus  et  ei  ignotis:'  and 
upon  liis  II.  Corpus  was  returned  to  be  tbere- 
'"eonlT  detained, '  Qui  cnoimittitur  Murr. 


Tothis 


1  ball; 


■ti;  colour  of  HtiisiTer  liath  liet 
JM  oSereil. 

Tl>e  lentil  is  Cateibie's  Case  in  the  Vacntion 
after  Hill.  Term,  43  El.  Rot.  Itobert  Cnte>bie 
wa*  <:amiuitted  to  the  Fleet  '  per  warrHotuui 
'  divenor.  pmnubiliuni  viror.  de  privato  con- 
'  cilio  doming  re^inx ;'  be  was  brought  before 
JDsticeFeiiner,  oneof  tbe  then  justices  of  the 


'  per  prvfat.  Ednardam  Feniier,  et  statitn  tra- 
'  ditnr  in  bait.' 

The  ele»enth  k  Rich.  Beckvitli's  Case,  wbirh 
was  in  Hil.  12th  of  king  Janies,  Rot.  153.  He 
»*s  retarned  uuon  his  H.  Corpus  to  havs  been 
committed  to  the  Gatehouse  bj  dirers  lord*  of 
the  priry-council;  'Qui  cointnittitur  Mnrr.  et 
'  postea  isto  todem  terminn  traditur  in  bnll.' 

To  this  ithaih  been  said  by  some,  that  Qeck- 
wiih'  was  bailed  upon  a  letter,  written  by  tlie 
honh  of  tbe  Council  to  that  pu^-pose  to  the 
Jui^ei;  but  it  appears  not  tliat  there  was  ever 
auj  ieller  written  lo  tbein  lo  that  purpose : 
which  though  it  Imd  been,  nould  bare  proved 
Dolhing  airiimst  the  authority  of  the  Record  ;  for 
it  was  never  hrard  nf^  that  judges  were  tu  be 
directed  in  point  of  law  by  letters  from  the 
Ipnb  of  tbe  council,  although  it  cannot  be 
doubted,  but  that  by  such  letters  sometimes 
they  have  been  tnoved  to  bail  men,  that  ivoiild 
or  did  not  ask  tlieir  enlargensent  wilhouc  such 
tetter^  as  in  some  eiamples  I  shall  shew  jour 
lordships  ainong  tbe  Precedents  of  the  Second 

The  twelfth  and  last  of  these  is  that  Of  sir 
Tbo.  Monson'i  Case  ;  ii  is  Midi.  14  Jac.  Rot. 
117.  He  was  committed  to  the  Tnwer  '  per 
'  warrantnm  i  diversis  domittis  de  privaio  con- 
'  dlin  domini  regis  locum  teoenti  directum ;' 
■od  be  was  returned  bv  the  limiennnt  to  be 
Aeref  ire  detttined  in  prison,  '  qui  committitur 
*  Alarr*  et  super  iradiiur  hoc  in  mIL'  To  this 
It  bath  been  answered,  that  every  body  knows 
by  common  fame,  that  this  gentleman  was 
coRusiited  for  suspicion  of  tbe  death  of  urTho. 
Overbury,  and  that  he  was  therefnro  bailable : 
a  most  atrsnge  interpretation,  as  if  tlie  body  of 
the  Return  and  the  Wnrrant  of  the  privy-coun- 
dl  itmntd  be  uoderetood,  and  adjudged  out  of 
bmtt  oolj.    Waa  there  voc  aa  much  a  fame. 


I S2H.— M«  Li&erly  <^the  Sv^nl.  [  lot 

why  the  genilemen,  that  were  remanded  in  tb« 
Intt  judgment,  were  committed,  and  uiiglit  not 
tlie  sell-lame  reasi  ■  have  served  to  eiilurt« 
them,  their  olTeiice,  if  any  were,  being  1  think 
iquch  less  thin  that  for  whicli  lliis  gentleman 
wBa  suspeged? 

And  thus  I  bare  faithfully  openert  the  nuiH' 
I  ber  of  tnelve  Precedeuts,  most  express  in  the 
'  rery  point  in  qiiesii^in,  aii'd  clHarml  the  objec- 
I  tiuns  that  liave  been  made  against  theiD.  Aiid 
of  such  Precedents  oCRecord'as  are  of  the  first 
kind,  which  prove  plainly  the  practice  of  funner 
Mgei,  and  Judgmeiit  of  ihe  court  of  kind's  bench, 
ill  the  very  point,  on  the  behalf  of  the  subject, 
my  lords,  hitherto. 

I  come  next  to  those  of  the  second  kind,  or 
such  as  are  pretended,  that  persons  so  com- 
mitted are  nut  tu  be  enUi)^  by  the  Judge* 
upoii  the  Habeas  Corp»s  hroi^lu,  but  tu  rt- 
main  in  prison  ttill  at  the  conmiaud  of  the 
King  or  the  Privy-Counciit.  These  are  of  two 
natures;  the  first  of  theae  are,  where  some  os- 
sein of  (lie  Kmg  or  the  Privy-Couocil  api>eut* 
upuo  the  enlaigemeiit  of  a  prisoner  so  commit- 
ted ;  as  if,  tlial  because  such  atient  appear.,  tlie 
enlari;ement  could  nut  have  been  witiiout  such 
assent. — The  seconil  of  tliis  kind,  are  those 
which  have  been  urged  as  express  testialonie« 
of  tlie  Judges  denying  bail ;  and  in  tush  cases,  [ 
shall  ojien  these  alto  to  your  lordships :  which 
being  done,  it  will  most  clearly  appear,  tliac 
there  ii  uoihing  at  all  in  any  of  these,  tliat 
makes  any  tiling  at  all  against  tlie  Resulution 
of  the  house  of  commons,  touching  tliis  point; 
nay  it  is  so  Gir  IVOm  their  making  any  thing 
aeainst  it,  that  M)me  of  tlieni  add  good  weight 
also  to  tbe  proof  of  ihat  Resolution. 

For  those  of  the  first  natur^  of  this  second 
kind  of  Precedents,  tbey  be^n  in  tbe  time  of 
H.  7.  Tbo.  Bruiixe,  and  diiers  other:^,  netc  im- 
prisoned in  the  King's-Dench  '  ad  mandaium 
'  doniiui  regi>,*  tliey  npver  sought  remedy  by 
Habeas  Corpus,  or  otberwite,  for  aught  ap- 
pears :  But  the  Roll  says,  that  *  dominui  rex 
'  relanHvit  mandiitum,'  and  so  they  «'ei-e  bail- 
ed. But  can  any  man  thiuk,  that  this  is  an  ar- 
gument either  in  law  or  common  reason,  that 
therefore  tliey  could  not  have  been  bailed  with- 
out lucb  aiseni }  It  is  coromoo  in  cases  of 
copimuu  persons,  that  one  being  in  prison  for 
surety  of  the  peace  or  the  like,  at  the  suit  uf 
another,  is  bailed  upon  the  release  of  the  party 
plainiilT;  can  it  follow,  that  therelbre  be  coulit 
not  have  been  bailed  without  such  release  ? 
Nothing  is  more  plain  than  tlic  contrary.  It 
were  the  same  thing  to  say,  tliat  if  it  appear, 
tbnt  if  a  pluiiitilT  be  noii-iuit,  therefore  unless 
be  had  been  n^m-sult,  be  could  nut  jnive  beeit 
barred  in  the  siiit.  Tbe  case  last  cited  is  Mich'. 
7  H.  7,  rot.  a. 

The  very  hLe  is  in  the  siunc  y'ar.  Hill.  7  H. 
7,  Rut.  13.     The  cose  of  Will.  Bartholomew, 
Wifl.  Chase,  and  divers  others,  and  ihe  self-  . 
same  answer,  that  is  given  to  the  other,  clear* 
this. 

So  ill  the  same  ycnr,  Pasch.  7  H.  7,  Rot.  18. 
Jobii  Bcumoud's  case,  ij  tbe  tame  in  tuUianca 


t03]  STATE  TUIALS,  SCuaslksI.  16'2S.'-Proucdings  mfartianaMTtluitiglo  [10* 
emiwer  tKkt  'latisfies  for  tlie  r^t  berore  cite4, 


vitli  clioK  oih«r  too,  and  the  Mtf-ume  aositer 
Uto  satisfies,  that  cleats  them. 

The  next  cRse  a,  Micb.  33  U.  7,  Rot.  8. 
Tlio.  Yew's  case ;  he  was  conmuUed  •  sd  sec. 
*  pacis,'  fiir  tlie  security  of  tba  peace,  at  the 
suit  afoiie  Freeman,  aiid  besides,  '  ail  iiiondn- 
■  '  tuiu  dum.  rtgis.'  And  first,  '  Freeman  re- 
'  iai;nicsec,pacis,'  anil  tben  lir  Juints  lIol>- 
bard,  llie  then  l(bg'»  A  uomey -General,  '  re- 
<  lixuric  maiidatuiD  dum.  regis ;'  nnil  hereupon 
hi!  is  bailed,  Tlie  release  uf  the  Jung's  Ati«r- 
riej  ni)  more  proves  that  he  could  not  have 
been  eiilarijed  wiiliouC  tucli  release  or  ass.eiu, 
ihmi  tjiat  he  could  not  h;ive  been  bailed  n-ith- 
«ut  reluaic  ufsurery  ol  tlie  peace  by  Freeman. 
Thu  very  hke  is  in  Uill.  g  U.  7.  Itot.  14. 
Tlie  crt^e  of  Humphry  Broclic,  which  proves  no 
iiiorc  IiiTo  than  the  rest  of  this  kind  already 
cited. 

llien  for  tliis  point  also,  Broome's  cose  of 
^ueen  Elizabeih'a  time,  is  Tiiii.  S'J  F.J.  Rot. 
138.  Laurence  Brooue  nas.  cmninitled  ii> 
the  Gate-iiouie  '  per  nianilatum  diuu.  concilii 
'  dominie  rfgiuie,'  and  being  reiurn«ri  so  upon 
tha  n.  Corpus,  is  firkt  cuiumiltcd  to  the  Miir- 
shfllsea  a^  the  course  is,  and  then  biiiled  by  the 
Murt;  which  indeed  is  an  express  precedent, 
that  might  perhaps  well  have  been  added  tu 
the  DuiQber  of  the  firjt  twelve:  which  so  phiu- 
JT'sheivs  the  practice  of  enlarging  pti'oners  Li 
this  case,  by  jtidginent  of  the  court  upmt  the 
II.  Carpus.  But  it  is  true,  that  in  the  Scroll: 
of  that  year,  wheie  tlie  bails  are  entered,  but 
not  in  the  Kecurd  of  tlie  H.  Corpus,  there  was 
II  note,  that  this  Broome  wits  bailed  ' 
'  datum  priTati  cuncilii;'  but  plainly  i 
any  kind  of  argument,  tli;it  ther^te  in  Uw  he 
might  ni>t  liave  beeu  otherwise  bailed. 

Tlic  silf-iaine  is  to  he  said  of  another  of  tliis 
kind,  ill  Mich.  40  £1.  Rot.  37,  Wmden's  Ca 
.Tho.  Wcnden  nas  committed  to  the  Gatehoi 
bj  the  quran  and  llie  lords  of  tlie  council  '  pro 
■  ccrtis  cauiis '  generally ;  he  is  brought  by  H. 
Corpos  into  the  King's-Bencb,  and  bailed  by 
(he  court.  But  it  is  s^iid,  that  in  the  Scrolls  of 
that  year,  it  appears  that  liis  eiilai^eoient  was 
'  per  coiisensuin  iluin.  privati  concilii ;'  and  it 
is  true  that  tlie  ciueeu's  Attorney  did  tell  the 
court,  that  the  lords  of  the  council  did  aueni 
to  It.  Follows  it  IliereJbte,  that  it  could  not 
bare  been  without  such  assent  1 

Next  is  Hill.  43  £1.  Hot.  89,  »- hen  divers 
tenlleiueu  of  fecial,  quality  were  iiapri^oned 
bj  the  cominaiid  of  tlie  privy- couucil ;  the 
queen  beiiig  graciously  pleased  to  enlatge 
Ulein,  sends  a  commandment  to  the  judges  of 
the  King'»- Bench,  that  they  sliould  take  such  a 
course,  for  delivering  tliem  npon  boil,  as  they 
should  tliink  lit :  antTthey  did  so,  and  enlBrgeil 
tbem  upon  writs  of  H.  Corpus.  Follows  it 
therefore,  that  this  misht  not  hive  been  done 
by  law,  if  the  parties  themselves  had  desired  it? 
So  ill  Ttin.  1  Jhc.  RoL  30.  Sir  John 
Brocket  being  Committed  t«  the  Gatehouse,  is 
returned  to  stand  cummitl«d  '  per  mandatuin 
•  privati  coticihi,'  aiid  be  is  enlarged  '  virl 
'  wurnuitj  u  coDcilid  piediclo.'    But  the  ei 


for  this  also. 
The  last  of  these, 
la  Jac.  Rot,  119, 
Gatehouse  bj  the  lords  of  ilie  counrii,  and  be- 
ing brou^t  iiiL»  llie  KiugVBeUth'  by  Unheal 
Curpu^  IS  enlu^cd  upon  bail ;  but  this  iliey 
say  was  upi(n  a  letter  written  fiom  one  of  tbs 
lords  of  tlie  council  to  the  judges.  It  is  trap, 
that  such  a  letter  was  nritteu,  but  ihe  auswct 
to  the  former  precedents  of  this  nature,  uieMf- 
Gcieut  t't  clear  ttiis  also. 

And  in  all  tliese  observe,  1.  That  it  appears 
iiot,  lliat  the  party  ever  desred  to  be  enlarged 
by  ttie  court,  cr  was  denied  it.  3.  Letters 
either  from  ilie  kini;  or  cuuncil  cannot  alter  the 
law  in  any  case :  »•>  ttiut  hitherto  nutliing  liatli 
been  brnuglit  on  the  cunttary  part,  tliat  hath 
any  t'rice  or  colour  u£  reason  in  it. 

Wo  conie  now,  ray  lords,  to  those  Prece- 
dents of  ihe  oiher  naiure  cited  against  the  Li- 
berty of  the  Subject:  that  is,  such  as  biive 
bL'eii  used  tu  mislibe  llie  persons  eo  committed 
may  nut  bu  enlnt|;«d  by  the  court.  They  ore 
in  number  eight,  but  there  Is  not  one  of  them 
thitpioves  any  such  thing,  as  your  lurdsliipf 
will  phiinly  itM  upon  opening  them.  The  liist 
four  of  them  are  exactly  in  the  same  words, 
saving  that  the  iiumes  of  the  persons,  and  the 
prisons  dilfer ;  I  shall  Uierefure  recite  them  all, 
one  after  uiiuther,  <tuil  tlicii  clear  them  lo- 
gethcr. 

The  first  is  Richard  Everard'*  case,  Hill. 
T  H.  7,  Rot.- 18.  Ho  and  others  were  cm- 
mitt.d  tu  the  Alilishalsca  of  tlie  liousliold, '  per 
'  mandntiim  domini  regis,'  and  so  riiiurued 
upon  n  H.  Corpus  into  the  King's-Bcnch ; 
tvhercupuii  the  entry  is  only  '  Qui  cuuiiniuilur 
'.Matr.'&c. 

The  second  is  Hill.  S  Hco.  7,  RichardCber- 
rr'i  case ;  he  was  ciiiiiinittcd  lo  the  mayor  of 
Windsor,  '  per  mandatum  domini  r^is,'  Bnd 
so  returned  upon  u  H.  Corpus ;  and  tlie  eairy 
is  only,  •  tloi  committitur  Marr.'  &c. 

The  third  is  HiU.  9  Hen.  7,  Hot. .14,  Christ. 
Burion's  case,  wlio  wud  committed  to  the  Mat- 
shulsea  of  tlia  houshold,  '  per  mandalum  do- 
'  mini  regis,'  and  so  returitcd  upon  his  Ilaleu 
Corpus ;  and  the  entry  is  likewise,  '  Qui  com- 
'  niittitur  Marr.'  &c.  ' 

The  fourth  is  Geurge  Ursnick's  c^e,  Pasch. 
19  Hen.  7,  Rot.  10.  He  was  commuted  to  tbi 
iheriils  of  London,  '  per  maiidatum  domtni 
'  regis,'  and  returned  so  upon  his  Habeas  Cor- 
pus, '  Qui  conimittiti^  Marr.'&c. 

These  four  have  been  used  principally,  at 
express  Precedents,  to  prove  tliat  a  prisoner  so 
commilled  caiinot  be  enlarged;  and  perhaps 
at  the  fitat  sight,  to  men  that  know  not,  and  ob- 
serve not  tlie  course  and  eutrie»  of  the  court  of 
King's-B'encli,  they  may  be  apprehended  to 
prove  as  miicli :  bulin  truth  they  rather  prove 
ihe  contrary,  at  least  there  is  no  colunr  in 
them  of  any  such  matter  as  they  have  bean 
used  for.  To  whicli  purpose  I  beseech  yoi^ 
lordships  to  call  to  your  m  "'""'  ~ 

I  first  obserred  to  )'uii  ' 


(he  course  of 


101] 


STATE  TRIAI^,  3  Chable*  L  1«S6.— tAe  LiUny  qftKt  Sulijcct. 


.[»» 


thit  coort.  Where  a  priwoei  U  brought  in 
h;  U.  CuTpus,  lie  ii  (tf  lie  be  not  lo  be  ic- 
nuuiiJed)  first  ctnuuiilled  tu  Uie  martlial  of  tiiB 
oMirt,  and  then  Laijerf  as  hi»  Case  [«|uire*. 
This  ii  sif  ceitaiD,  na  it  on  n^ver  be  otbtirwbe. 
Noir  tb«*e  incD  beiog  thus  cummitied  bjr  Lhe 
npins  coDiniiud  of  the  king,  big  fine,  ifou  see, 
ttkcu  from  the  prtiont  vihidwT  tliey  were  first 
comiuilted ;  nhEreiu  you  ufaj  ubsirTc,  my 
lordf,  ihatif*  general  siupiciuD  of  matter  of 
Mjle  vere  of  force  in  such  a  cn$e,  it  might  be 
u  De«dfiil  in  puiiit  of  state,  to  have  the  prisoner 
reoiaiji  in  thepriiuD,  vrhera  the  king  by  luch  an 
absolute  coinniand  comniiited  hire,  u  to  bare 
llim  at  all  commitud.  When  they  have  takea 
them  from  tb«  priaoos  where  before  they  were, 
the;  commit  ibem  to  the  marshal  of  Uieir  o«ra 
cnuit,  which  is  hut  the  first  step  to  btiliaK 
them.  Now  it  appears  not  inileed  that  they 
mre  bailed,  tor  then  '  TraJiiur  in  Ball'  had 
fiiUowed,  bot  nothing  at  all  appears  that  ihey 
irere  denied  it;  perhaps  they  never  asked  it, 
peilops  tbey  couid  aot  find  such  as  »ere  auffi' 
oeat  to  bail  them.  And  in  truth,  whenso«Ter 
■nj  man  is  but  removed  from  any  prison  in 
Ei^land  (though  it  be  for  debt  or  traspess  only) 
■Bto  that  court,  the  entry  is  butiDthaself-saui* 
•yitables  as  in  these  four  cutes. 

And  in  truth  if  these  Proceediags  did  prove, 
that,  aor  of  the  prisoners  named  in  them  were 
Dot  bailable,  or  had  been  thought  by  the  couft 
not  to  have  been  bailable;  it  miU  neoetsarily 
follow,  that  DO  man  living  that  is  ordinarily  re- 
tBored  fram  any  prison  into  the  King's-Bench; 
Of  that  is  (hue  upon  any  ordinary  action  of 
debt,  or  actioB  of  trespass,  could  be  bailed; 
far  avary  man  that  is  brought  thither,  and  not 
reoHUided,  and  every  maa  that  is  arrested  but 
fcr  a  debt  or  trespass,  and  was  returned  into 
that  court,  is  hkewise  committed  to  the  matahal 
of  that  court,  and  by  the  self-same  entry,  and 
not  otherwise;  ret  these  four  have  been  much 
sbKid  on,  and  nave  strangely  misled  the  judg- 
ment of  tome  that  did  not,  or  would  not,  seem 
(o  understand  the  course  of  that  court. 

The  Gtth  of  this  natare  is  Edward  Page's 
Casej  it  is  Tr.  7  Ben.  8.  This  tfiight  have  been 
wcUteckoaed  with  tbefonner  four,  had  not  the 
miimiiy  of  the  derk  only  made  it  vary  from 
them.  Bdward  Page  was  committed  to  the 
Maiabalse*  of  the  Itousliold,  and  tfiat 
'  mandatum  domini  regis,'  and  returned 
thenfore  detaiived,  and  tlte  entn  is  '  Qui 
'  mittitnr  Mar*  bospitii  dont.  rctiii.'  This  wotd 
'  UaiT.'  is  written  in  the  margin  of  the  Boll; 
tbia  hath  been  used  ta  prove,  that  the  judges 
remanded  tliis  prisoDfr ;  if  they  had.  done  m), 
the  ranaoding  bod  been  only  while  they  ad- 
'  vised.  Mid  not  any  such  award  wliich  is  given 
when  tb^  adjudge  him  not  baiJable.  But  in 
truth  the  word  *  committitur'  shews,  that  there 
was  not  any  remanding  of  lum,  nor  doth  that 
ODurt  ever  commit  any  man  to  the  MarsbaUea 
of  the  hnuihold:  and  besides,  the  word  ■  Marr.' 
fur  Marescallo  in  the  marein,  sliews  plainly 
d«t  he  was  committed  to  the  marshal  of  Um 
Kat^t-beacii,  and  not  mnandod,  to  tha  Mar- 


ahalsea  of  the  houbb<4<l ',  for  sudi  entry  oftluC 
word  in  the  m&J^n,  is  piu-petuaUy  in  cases  of 
that  uatore,  when  ttiej  comoiit  a  mivi  to  their 
own  prisuH,  and  so  give  him  llie  first  step  ta 
bailmeot,' which  he  may  have  if  he  aik  it,  and 
can  find  bail.  And  ikubtlesB  these  words  of 
'  llospitii-prsd.'  were  added  by  the  error  of  ttie 
cleVk,  for  waut.of  disiiiictloo  in  his  undentand- 
ing,  from  the  '  Mair.'  of  the  Kiiig's-'beucb,  to 
theBiarsbat  ofthebouiholdl 

The  siilb  of  th^se  ia  Thomas  Ctnar'»Case ; 
' :  is  8  Jac.  rot.  99.  This  Cesar  was  committed 
D  the  Marsbslsea  of  the  honsbold,  '  per  man- 
datum  domini  regis/ and  returned  to  Iwtlicre- 
fbre  detained,  and  indeed  a  '  remittitur'  is  in- 
ihe  roll,  but  not  a  ■  remittitur  quonsque,'  but 
only  that  kind  of  '  remiuitur'  which  is  oal^ 
used  while  the  Court  advises.  And  in  truth  this 
far  from  proving  any  thing  aguDst  tha  re- 
solutioo  of  the  house  of^commons,  tliat  it  ap- 
pear* that  the  opinion  of  the  reverend  Judges 
of  that  time  was,  that  the  return  was  intufficient, 
and  that  if  It  were  not  amended,  the  prisoner 
shall  be  discharged.  For  in  the  Book  of  Roles 
in  the  court  of  iUich.  Term  (wlien  Cesitr'a 
Cm*  was  in  question),  they  Expressly  ordered, 
that  if  the  steward's  marshal  did  not  amend 
their  return,  the  prisoner  should  he  absolutely 
diachtuged  :  the  words  of  the  rule  are,  'nisi 
'  senesodlus  et  marescal.  hospilii  domini  Te|^ 
'  Buficienter  retumaverint  breve  de  Habeas 
'  Corpus  Thorns  Ceesar  dier.  Mercur.  proi. 
'  post  quinrienam  scilicet  Martin,  dcf.  exnne- 
'  rabitur.'  And  this  is  also  the- force  of  that 
precedent,  but  yet  there  bath  been  an  interpre- 
tation upon  this  rule.  It  bath  been  said  that 
(lie  judges  gave  this  ru|e,  because  ihe  truth  was, 
that  the  return  was  false,  and  that  it  was  well 
knowD,  that  tlteprisonerwasuotcnmmitiedby 
tliE  immediate  cumniaud  of  the  king,  but  by 
the  command  of  the  lord-chamberlain,  aart' 
tbence(nsii  was  said)  theymadetliiii  rule;  but 
this  kind  of  interpretation  ii  the  fir^l  that  ever 
was  supposed,  ihatjudies  should  take  notice 
of  the  truth  nr  felshaod  of  tlie  ratum,  other- 
wiie  than  the  body  of  the  return  could  inform 
them.  And  the  lule.  itself  speaks  plainly  of 
the  Bufficieocy  only,  and  not  ol  the  truth  or  falv, 

lite  seventh  of  tbeae,  is  the  Case  of  James 
DeiinaMtres,  Edward  Emerson ,  and  some  others 
that  were  Brewers,  and  were  committed  to  the 
Marshaliea  of  the  boushold,  '  per  .mandatum  ' 
'  dotnini  regis,'  and  so  returned  upon  H,  Cor- 
pus:  an^  it  is  true,  diat  the  roll  shews  that 
they  were  remauded,  but  the  remonding  was 
only  upon  advisement.  And  indeed  the  grave 
and  "upright  judliea  of  that  time  were  bo  careful, 
lest  upon  the  entry  of  the  remanding,  any  such. 
mistnke  might  be,  as  ml<;ht  perhaps  mislead 
posterity  in  so  great  a  pomt,  thnt  they  wo«ld^ 
eapressly  have  this  word  <  immediate'  added 
to  the  '  remittitur,'  that  so  all  men  that  should' 
meet  with  the  roll  might  see,  that  it  wts  done 
for  the  present  only,  and  not  upon  any  debate 
of  the  questioii.  And  bendcs,  thnt  there  is  no 
'  quouique'  to  it,  which  it  usually  added,  ujien 


107]  STATE TRIAIS,  SCflARUirl.  lOQS.—Proceedmgi  in Parliatnail nlating  to  [lOS 
die  highest  award  opoa  liebite  or  resolnCion  of 


iiHill.  It  Jbc.  Sir  SnniiiGl  Salton- 
■tali  was  commiunl  to  the  Fleet,  '  per  manda- 
.  '  tum  domini  regis ;'  and  benides,  bf  the  Coart 
'  of  Cluincerr,  for  disobeying  an  onler  of  that 
oourtf  and  is  returned  apon  his  Habeas  Corpus, 
to  be  tbereHire  detained.  And  il  i»  true  tJiat  a. 
■  remittitur'  is  entered  Id  the  roll,  but  it  is  onlj 
»  '  recaittitur  priMtoe  predict.'  withnut '  qtious- 
'  que  McuDilum  legem  deliberatus  fiierit :'  and 
id  truth  it  appenrs  on  the  record,  that  the  conit 
|:aTe  tbe  Warden  of  the  Fleet  tbree  sereral 
dajs  at  *eT«a^  times  tn  ameud  hii  return,  and 
in  the  interim  '  remit  til  ur  prison  ae  prted'.'  Cer- 
taiuijr  if  the  cuuit  had  thought  that  tlie  return 
bud  been  good,  the;  would  not  have  given  so 
many  several  days  to  have  amended  it ;  for  if 
that  '  mandntum  domini  te^s'  had  been  suffi- 
cient in  the-  case,  why  need  it  to  have  been 
UDendedf 

Tbe  ninth  Bud  last  of  these  is,  Tr.  13  Jac. 
rot.  71,  the  Case  of  the  said  sirSai^uel  Saltan- 
■tall:  he  is  returned  by  the  Wtrden  of  the 
Fleet,  as  in  the  i;ase  before,  and  generally, 
'  reautkitur'  is  in  the  roll,  nhich  proves  nothing 
at  nit,  that  therefore  the  court  thought  he  might 
not  by  law  be  uilarged  ;  and  besides,  in  both 
CBsei  be  stood  committed  also  fur  disobeying 
'  an  order  in  the  (Chancery. 

Theiie  are  all  that  have  been  pretended  to 
the  contrary  in  this  great  point,  and  upon  the 
view  of  tb^  thus  opened  to  your  lordships,  it 
is  plain  that  there  is  not  one,  not  so  much  ns 
one  at  all,  that  pToveth  any  such  thing,  as  that 
persons  committed  by  the  command  of  the 
(inf,  or  the  lords  of  tbe  council  without  cause 
ihewtd,  might  not  be  enlarged  ;  but  indeed 
iha  most  of  .them  expressly  prove  rather  the 
contrary. 

'  Now,  my  lords,  having  thus  g<me  through  the 
Precedents  of  Record,  that  cnncem  the  pninC 
of  eitlier  side,  bclbre  I  come  to  the  oilier  kind 
of  Precedents,  which  are  t*ie  solemn  llesolu- 
tioos  of  Judges  in  former  timet,  I  shall  (at  I  am 
eoramanded  also  by  the  -house  of  commons) 
represent  unto  your  lordships  somewhat  else 
the;  have  thought  very  considerable ;  with 
which  they  met,  whilst  they  were  in  a  most 
careful  enquiry  of  whatsoever  concerned  them 
in  this  great  question. 

It  is,  uijr  lords,  aDraueht  of  an  Eni^  of  a 
Judgment  in  that  great  Caae  lately  adjudged 
io  the  court  of  King's- bench,  when  divers  gen* 
tlemen  iraprisoaed  'peaspeciale  mandatnm 
'  domini  rrgis,*  were  by  tbe  award  and  order 
of  tbe  court,  after  solemn  debate,  sent  back  to 
prison,  because  it  wat  expresily  said,  they  could 
not  in  justice  deliver  them,  though  tbey  prayed 
to  be  bsiled.  The  Case  is  famous,  mid  well 
known  to  your  lordships,  therefore  1  need  not 
fiirtber  (o  mention  it :  as  yet  indeed  there  is 
no  Judgment  entered  upon  the  Roll,  but  there 
is  room  enuu^  for  any  kind  of  Judgment  to  be 
cnttired.  But,  my  lonls,  there  is  a  form  of  a 
Judgmentj  a  uott  luutnal  one  j  itich  a  on*  as 


never  was  in  any  such  case  before  (for  indeed 
there  was  never  before  any  case  so  adjudged), 
and  thus  drawn  on  by  a  chief  cleil  of  that 
court  (by  direction  of  Ur.  AiCurney-Genenil), 
as  the  house  was  informed  by  the  clerk,  in 
which  the  reason  of  the  Judgment,  and  remand- 
ing of  those  gentlemen,  is  expressed  in  inch  lort, 
as  if  it  should  be  declai^  upon  Iteconi  Ibr 
ever,  ihatthe  lams  were,  that  no  man  could  ever 
he  iniarged  from  imprisoninent  that  stood  com- 
mitted by  such  an  nbsslute  command. 

The  draught  is  only  in  sir  John  Hevening- 
ham*s  Case,  being  one  of  the  gentlemen' thnt 
was  remanded,  and  it  was  made  for  a  form  for 
all  the  rest.  The  words  of  it  are  after  the  tisual 
entry  of  a  Curia  ntfcuarevu^C  for  n  time;  that 
'  Visis  retur.  predict,  nee  non  diversis  antlAuia 
'  reeordis  in  curia  hie  remanent,  cnnsimilei 
■  casus  cnntinentibus,  niataraq.  deliberatione, 
'  inde  prius  babita,  eo  quod  nulla  spefialis 
'  causa  captionis  sive  detentionis  prsid.  Johan- 
'  nis  exprimiiur,  sed  generalitar  auud  detentui 
'  est  in  prison  a  pned'.  per  speciole  mandatum 
'  domini  regis,  idea  prxd'.  Johannes  remittitur 
'  pmbt.  custodi  mnrr.  hospitii  prxd.  salvo  CUS- 
'  todiend.  ouausq.  tee,'  that  is,  '  qunusque  s&- 
'  cundum  legem  dcliberatui  faerit.'  And  if 
that  court,  that  is  the  liighest  for  ordinary 
justice,  cannot  deliver  him  tttundttm  Ifgem; 
what  law  it  there,  I  beseech  you,  my  lords, 
that  can  he  sought  for  in  any  other  mferior 
court  to  deliver  hiin.'  Now,  my  lords,  because 
this  draught,  if  it  were  entered  in  the  floU,  (aa 
it  was  prepared  for  no  other  purpose)  would  he 
as  great  n  declaration,  contrary  to  the  manj 
acts  of  parliament  already  cited,  contrary  to 
all  precedents  of  Fbruier  times,  and  tn  alt  rea- 
son of  taw ;  to  the  utter  subversion  of  the  high- 
eat  liberty  and  right  belonging  to  every  free- 
man of  this  kingdom,  and  for  that  bspecialljr 
also  it  supposes,  that  divers  uncient  records  had 
been  loolied  into  by  the  court  in  like  cases,  by 
which  records  their  jutlgments  were  diri'cted  ; 

at  all  extant  that  with  any  colnur  (not  so  much 
indeed  as  with  any  colour)  warrants  thejudg- 
■nent:  therefore  the  house  ofcommons  tliought 
ht  also,  thnt  1  should,  with  the  rest  (hat  hath 
been  laid,  shew  tliis  draught  also  to  your 
lordships. 

I  come  now  to  the  other  kind  of  Precedents, 
thnt  is,  solemn  Resolutioiit  of  Juriges,  which 
helng  nut  of  Record,  mnaiii  only  in  authentic 
copies:  but  of  this  kind  there  is  but  one  in  this 
case,  that  is  the  Resolution  of  alt  tbe  Judge* 
iu  the  time  of  q^iieen  Elizabeth.  It  wm  in  Uio 
34th  of  her  reign,  when  divers  persons  had 
been  committed  by  absolute  commnnil,  and 
delivered  by  the  Justices  of  the  one  Bench  or 
the  other;  whereupon  it  was  desired,  that  the 
Judges  would  declare  in  what  cases  prrton* 
oommitted  by  such  command  were  to  be  in- 
iarged, which  hath  been  variously  cited,  and 
variously  apprehended.  The  Rouse  of  Com. 
Dons,  therefore,  desiring  with  all  care  to  inform 
themselves  as  fully  of  the  truth  of  it  as  possiblj 
the/  might,  gut  iaw  thsir  fatuids  from  a  ineiubcr 


109]         STATE  TR1A15,  1  CaARtEs  I.  lM8.~iAe  Libertg  nftia  Suhjea 


[110 


alibat  lotat,  ■  Book  at  sdMtetl  «*««*,  coi- 
ItcMl  by  a  revciend  aiiil  learoed  Chief- J  UMice 
ol'tiie  ComnoD-Pletu,  tiiAt  was  one  of  tbem 
ilatpveibe  Ktsolnfion,  wUich  i»  eotered  nt 
lute  in  that  Book  ;  1  mean  [he  L.  C-  Justice 
Aulcnoa,  it  ii  written  in  the  Book  with  liis 
mn  huid,  ii  <l«  ten,  of  ibe  Book  ib,  aiid  hr>w- 
wrer  it  hnth  been  cit«],  and  wns  cited  tii  that 
pint  Judgm^HC  uion  l)ie  Uub^s  Corpus  in  the 
Kiif  VBeud- '  if  it  tmd  been,  that  upon  aucli 
commitmeati'.  je  Judjies  might  not  bnil  the 
FratHien;  jel  it  is  most  pJain,thatiLithe  Iteso- 
totioa  itself  uo  sucb  tiling  is  cDntuiiied,  bat 
niher  eipreswd  the  couinir;.  1  sball  better 
trpmeni  it  to'  ^our  lordships  b;  reading  it, 
ihiD  bj  o)>ening  it. 
Then  it  inu  cead  here.  (See  anit,  p.  76). 
If  this  Hesolution  dothmolve  nn^  thing,  it 
dotb  iadeed  upon  ibe  enquiry  resalve  full;  the 
aattv;  to  ibat  vhich  haib  been  pretended, 
■nd  eoou|h  for  the  maintenance  of  the  ancient 
tad  fiindamental  point  of  J  i  ben  j  of  thi.^  peiaon, 
to  be  regained  hy  Ilubeas  Corpus  nhcn  any  is 
impcisoned.  And  I  the  ralhef  thought  it  fit 
Mir  to  Kad  it  lo  jour  lordships,  that  it  mi^lit 
be  at  Urge  heard  ;  because  in  die  grent  Jud^- 
Bfflt  in  tlK  KingVBenCh,  though  it  was  ciied 
ittht  Bar,  ns  against  this  pobt  of  persona] 
tbenj,  Rs  nbo  at  the  Bench,  yet  tliou);b  everr 
Ilnag  elte  of  record  lliat  was  U'cd,  were  at 
hi^e  read  openlir,  this  was  not  fend  either  at 
Ur  or  bench:  for  indeed  if  it  hnd,  ever^ 
kuer  would  easily  have  known  the  force  of  il 
utuRe  been  indeed  contrary  to  the  Judiment. 
Uy  lordl,  hating  thus  gone  throuEh  ihe 
Auffi  committed  to  me  liy  tlie  house  of  com- 
um>,  ind  havinc  thus  mentioned  to  your  tord- 
*ip»,  and  opened  the  many  Precedents  of  Re- 
conii,  aad  that  Ehaoght  of  the  Juilgment  in 
thii  like  case,  as  also  this  Resolution;  1  bhall 
to*  (te  I  had  leave  and  direction  given  me, 
bkyoor  lonlkhip*  ihoiild  be  put  to  much  trou- 
ble aud  expence  of  time  in  finding  or  setting 
copiet  at  iw^e  of  thme  things  which  I  hare 
cAtd)  offer  also  to  your  lordships  authentic 
o^^  of  thera  all,  and  so  leave  tliem,  and 
wlijtioeTer  else  I  have  toid,  lo  your  lordihips 
(nitber  canaideruion. 

tltlnu  Copy  <>f  the  PraedaUt  1^  Record. 
Inter  Record.  Dom.  R^ia  Ciroli  in  Tbesauro 
Bccept.  Scocmrii  (ui  sub  custodin  Dom.l'he- 
Huimr.  et  Camerar.  ibidem  remanen.  'iz. 
Plmta  coram  Domino  Rege  Bpitd  Westi 
nasL  da  Ter'  Paache  anno  Ki   "  ~ ' 
)Kat  cooqueM.  Anglic  18. 
li/ietar  ot  sequitur. 

Rdi.  33.  Adhuc  de  termino  Pasch. 
Domiiius  Rex  mnndavit  dilecto  et  fideli^uo 
Koberto  de  Dalton  consubular*  Turns  (uk 
IwHan  velejiul'icum  tenent'  bre.  suum  in  hiec 
*irba:  Edwnntus  D^  gratia  rex  Anglis,  Fran- 
a«,et  domiuus  Hil>erni»  dilecW  et  tideli  suo 
Kobenodc  Dalton  coustabulHr'Tuiriisua!  Loa- 
te  let  ejus  locum  tenenc  salutem.  Mandn- 
■n  quod  Jobaanem  Bildeuon  capeHan'  qoera 
^  BMtr.  Lo^Joo  ad  OMMlalum  nostrum  apod 


Kegi  Edwardi  3. 


preit.  Turrim  vobis  libera  vit  ab  eisdem  rcdpiatis 
et  io  prisoua  nostra  Turria  London  pred.  salvo 
custodir*  fee"  qnouMfue  aliud  super  hoc  daxeri- 
nnu  demandand.  teste  meipso  apud  Turrim  no»' 
tmm  London  30  die  Marlii  anno  regni  nouii 
AiigliEE  16.  regni  vero  nostri  Fvdc>«  30.  £t 
modo  scilt.  in  Craat.  Ascen.  Dom.  anno  regl* 
nunc  8.  coram  domino  rege  apud  Westminit, 
venit  Johannes  de  Wjnwick  locum  teneiis  pred. 
coiistab^'^-  et  adduxit  cnmm  Justiciar'  hie  Id 
cur.  pred.  Johannem  de  Bitdestim  qnem  ille  a 
pref«t.  vicpcomil.  virtute  brevis  pred.  recepit. 
&c.  £t  dicit  quod  ipie  a  dom'muTrge  babuil 
mandat.  ducend.  et  Iibrrand.  corpus  ipsius  Jo- 
hunnis  de  BildeMou  prefiit.  justiciar,  hie,  &c. 
X.I  qaesitnm  est  de  pred.  Johaiine  de  Wynwick 
si  quam  nliam  detentiunis  prefat.  Johatinis  de 
Bildesion  habeat  enotam.  Qui  dicit  quod  noa 
nisi  bre.  pred.  tantum.  El  quia  videtur  cur> 
bre.  pred.  suScien.  non  esse  predict.  Johunnis 
de.Bildesion  prisun.  Marr'  regis  hie  retincn.  && 
Idem  Johannes  dimiititur  per  innnus  Willielm, 
de  Wnkefield  recloris  erde.  de  W  illiiiEham,  Jo- 
hannia  de  Wynwick  in  com.  Kauc.  Johntinis  de 
Norton  in  com.  Norftl  Nicnlnl  de  Bl:iiideflbrd  , 
in  cnm.  Middt,  et  Ko^eri  de  Brnmley  in  com. 
StiitTord,  qui  euin  inanucrperunt  habend.  euni' 
coram  domino  rege  in  nctabis  Stuicii  Trin.  ubi- 
cuiique,  &c.  viz.  Corpus  pro  corpoce,  &c.  Ad 
i^uas  ociabis  Sanct.  Tnn.  coram  domino  rege 
npud  Weatm.  ven.  pred.  pet  maaut  pred'  El 
super  hoc  mandnvitjustidiir.  suis  hie  quo<ldaia 
bre.  suum  claus.  in  luec  verba,  Ednardus  Dei 
Ijralia  rex  Anittis,  et  Francic,  et  dominus  Hi- 
beniiie,dilectitetfidel.sui9WillielmDS<-ot,etso- 
ciissuis  justiciar' ad  plncita  coram  nobis  tfneiid. 
HSsignnt.  saltern  cum  nuper  maMdaverimiu  di- 
lecio  et  iideli  uojiro  Hobtrto  de  Dalton  consia- 
buliir'  Turria  anstne  Loudon  vel  ejus  locum  le- 
nen.  quod  Johaiiueni  de  Uildesion  capcllnnunt 
capt.  et  detent,  in  priaona  Tutris  pred,  per  pre- 
ccptom  nostrum  pro  suspifioiie  contrnmciionii 
magni  aigilli  nostri  cum  attacbiat.  et  aliia  causi* 
c.-iption.  et  detentiunem  pred.  tanjtent.  salvo  et 
secur"  dud  fiic'  coram  nobis  in  Cnwt.  Aacen. 
Dom.  ubicunqne  tunc  fuisiemna  in  AiiglLapri- 
■onz  Marescuil.  nostr.  coram  nobis  liberantf,  id 
eadem  auousque  per  quendam  iufbrmatorem  ea- 
semUs  plenius  informal,  cuitod.  et  tuta  iude  in- 
fin^natione  pred.  ulterius  pred.  super  hoc  fieri 
fecerimusquod  fore  viderimus  faciei  id.  secundum 
legem,  et  cnnsneludinem  regni  nostri  Alalia, 
nos  in  casu  quod  dictus  infonnator  iMn  Ten.  co- 
ram nobis  ad  inforraand.  nus  plenius  super  pre- 
miss. Tolentes  eadem  Jobannem  ea  de  causa 
justiciar'  deferra  in  hac  pane  vobis  mandomiu 
quod  si  pred.  informetorin  quinden.  Sanct.  Tiia. 
proi.  futur.  tel  circa  non  venit  super  hoc  ple- 
nius ioformat.  tunc  adveut.  nusdem  infonnator 
it  luiuime  expectat.  eidem  Johanni  super  hoo 
fieri  (ac.  justie.  complement,  prout  f'lre  videriti* 
taciend.  secundum  legem  et  consiietudinera 
refini  nostri  Anglrge,  teste  nieipso  apud  Weat- 
mintt.  13  Mail  anan  regni  nostri  Anglic  18. 
Recni  vero  nostri  Frutc'  quinto.  Quo  qilidein 
bre,  respect,  fact,  est  proclamuio  qund  siquii 
dictum  regem  adper  preniisi.  infonaare  rd  crga 


Hi]  STATETEIAIS,  3  Cbablbi  I.  HKli.-fPnctediitgiiHVarUaiiatiTat^gi6  [113 

■niDm  Jobannnti  prosaqui  volaerlt,  qaod  veniaL 
£c  saperhocrenitpred.  W.ds  Wakefidd,NU 
chnla)  de  Wandsworth,  Jo,  Bryowjii,  Jo,  -de 
Longiurai,  Jo.  de  Norton,  ec  Rdgerus  lie  Bromley 
oibbcb'  de  com'  Midd'  et  man'  pred.  Jobanneni 
de  BiMeaton  hnbcnd.  com  coram  domiiio  rege 
de  die  in  diem  tisqae  ad  prefat'  qninden.  Saact. 
Trin.  ubicvniiae,  be.  Adquein  diem  anno  IB. 
toTMn  dmiiinu  leg^  apud  Wtttminst,  venit  pred. 
Johannes  dc  Bildeston  per  nmnlia  pred.  et  ite- 
rata  facts  eat  proclam.  in  faroiR  qua  superiiu, 
&c.  et  nuUas  veoit  nd  dictum  regetn  informand' 
&c.  per  qood  concess.  e«  quod  pred.  Johannes 
de  Bildestop  eat  inde  liiie  die  lolva  Kinper  itc- 
lione  dom.Tc^i  li  qua,  &c. 
De  Ter'  Sanct.  Hillar'  anno  32  B.  S,  et  per 
.    cont.  Rot.  ejuidem  Rolul.  31. 

Johannet  PHrker  per  Ricarduin  Cboppia,  et 
■  W.  Douosey  vie'  London  Tirlute  bievis  doni. 
regis  de  Intitat,  pro  pace  versus  ipsumjohannem 
Parker  ad  sect.  Johannis  Bruton  ds  inde  direct, 
et  coram  rege  duct,  cum  causa,  \'u.  quod  idem 
Johannes  Piirker  Cspt.  fuil  in  civitaCe  pred.  pro 
tiecu'  pBcis  pred.  et  pi;p  susprcione  feliinis  per 
ipsum  apudCroiveall  in  com.  Glocest.  perpetraC. 
per  noinen  Johannig  Porker  de  Thdrubuij  in 
com.  Glocest.  corser,  alias  diet.  Johaii.  CImrbs 
de  eHdem  com'  su^enn,  ac  per  niandaium  dom. 
r^  nunciat'  per  Kubertum  Peck  gen'  de  Clif- 
fbrdi'Inn,  qui  committitur  Mnrr"  &c.  et  postea 
■9te  enrlem  termino  trnditur  in  Ballluu  Thomz 
Atkins  de  Thornburj  pred.  weaver,  et  Willi. 
Note  de  eadem  villa  et  dum,  usque  a  die  Pasche 
■D  unum  men.  neavcr  ubiciioque,  ftc.  Et  quod 
idem  Johauiiis  Parker  citra  eundeui'  diem  per- 
'•nnaliter  compnruit  coram  justiciar'  dom.  regis 
ad  prox.  general.  GhoI  Delilieratiou'  in  com. 
Glocefr.  prm.  leoend.  ad  suhjiriend,  et  recipi- 
end.  en  u inn ia,  ei:  singula  qiix  prefaL  justiciar' 
de  eo  tunc  ordinare  coiitigerint,  &c.  viz.  Corpus 
pro  corpiirc,  &c.  Ad  quein  diem  pred.  Johnn- 
ois  fnrker  licet  ipsi  4.  plant,  solemniter  exact. 
ad  coinp:irend.  non  veil,  ideo  caperet  eum  pier' 
Trill,  ad  nuein  diem  ex  octnb.  IViit.  postea 
Trin.  31  H.  8,  ex  Crant.  quindcn.  I'lische.  Ad 
quem  diepa  hre '  et  vie'  return'  quod  ad  IIusi. 
t^nt.  apud  Lundon.  die  Lone  proK*  pout  fest. 
Sancle  Suholnitice  nftno  regis  H.  8,  25.  Joiiaii- 
nw  Parker,  et  W.  Nole  ut!"  Tuer.  prnut  palet 
per  bre.  regis  de  Ter' Pasche  anno  '25.  Ks.'  pred. 
De  Ter.  SancL  Mirh.  anno  33  H.  8,et  per  coat, 
ejusdem  Rot.  33. 

Johaniietn  Biii'cks  per  Eto.  Baker  nr.  seneseall, 
cur.  Uarr,  et  Radum  Haptou  Mar'ejuidem  cur. 
virtute  brevis  d<im.  regis  de  HiUieas  Corpus  nd 
sabjiciend.  et  recipiend.  Sec.  eia  inde  direct. 
coram  dumino  rege  duct'  ciun  causa,  viz.  quod 
ante  adventum  brevis  pred.  JohBOnes  Bjiicks 
cifHus  fuit  per  mandatuin  privati  conialii  dom. 
regis  pro  sutplcinnc  telonls,  e[  pro  aliis  cansis 
ilius. movent,  a  due'  ad  giiol.  Murr.  et  ibidem 
detent,  virtute  gaol'  pred.  qui  conitnittitar  Marr. 
&c.  Et  immediate  ex  gra'  cur.  special'  pred. 
Johannes  Blocks  ds  Mat^na  Mnrlow  in  com. 
Buck,  weaver  traditur  in  Ball.  Tboma  Signam 
lUiioiidoneent. «  Jobai>i)iWoOd<raTd  deMar' 


pnd.  ta*lor,  tuque  in  cratt.  Sanct.  Martin.  - 
ubicanqnF,&C.  nine  pleg.  corpiu  pro  corpore, 
Sec.  Ad  qoein  diem  comperuit  et  Robectos 
Dmrj  nr*  et  JohannesBorae  gen.  domino  jua- 
'  dom  regis  ad  patxm  iu  com' Buck,  virtute 
s  dom.  regis  eis  direct,  domino  re^  certi- 
ficaverunt  quod  nullum  indictameiitum  de  ali- 
quibos  feloniis  et  transg.  versus  ipsum  Joliannem 
Byncks  coram  eis  ad  preieiiB  resident.  El  ul- 
terins  de  lama  et  gestu  ipsiuS  JohaDnh  Byncki 
er  Sdcram.  proborum  et  l^allum  boniin.  com. 
lack,  ditigenter  inqniri  fecerunt,  et  nihil  aliiid 
reter  bonom  de  eo  coram  eis  est  compertum. 
jeo  cooc^s.  est  quod  pred.  Jo.  Bjncks  de  pre- 
lissif  eat  inde  line  die  ddibcratur  per  proda- 
lationem  et  jur.  prouc  moris  eit. 
De  Ter.  Pas.  anno  3  et  3  Ph.  et  Mar.  Rot,  56. 
Ricardut  Overton  nuper  de  London  gen.  per 
Tlio.  Leigh,  et  Joljanuem  Maciiell  tic'  London 
virtute  brevis  dom.  regis  et  regine  da  Uabeas 
Corpus  ad  slnad.  ,rect,  &c.  eia  inde  direct,  co- 
ram Willielmo  Portinan  mil'  capital.  Uuticiar. 
&c.  duct,  cum  causa,  viz.  quod  pred.  Uicardus 
Overton  9.  die  Octobr.  ult.  preter  comniist.  fnit 
prison.de  Newgate,  et  ibidem  in  eadem  priton« 
sub  custod.  diet.  vie.  deieot.  ad  nundatum  per- 
nobiliuto  duorum  boDorabilis  coQcil.  pred.  rr- 
gis  et  regine  qui  committit.  Mair.  &c.  et  im- 
mediate traditur  in  Ball.  Willielmo  Overton  d« 
London  f;en.  et  Johanni  Tayler  de  porocliia 
Sanct.  Martini  apiid  Ludgnte  London  mere, 
uii^e  octab.  Trin.  viz.  uierque  maoucaptor. 
pred.  corpus  pro  carpure  et  pottea  Tr.  S.  £1. 
reiiin*,  corpus  OvercoD  et  pleg.  suos  ocialus 
Michael,  ad  quem   diem  ci  mens.  Pasch.   aij 

Stem  diem  vie.  reti  quod  ad  Hust.  sutim  tent. 
uildhnll  civicatis  London  die  Lunn  post  f^ 
turn  Sanct.  Gregor.epi.pred.  W.  Overtoo  uil' 
est  el  per  bre.  Pas.  anno  suprad. 
Da  Ter.  Sanct.  Mich,  anno  9  et  3  P.  et  Mar. 
Bot.  16.  habet  Chart.  altocuL  Trio.  9«t  9 
Phil,  et  M. 
Ricardus  Overton  noperdeLood.'gen,  cnpt. 
octab.  Hill,  pro  quihusdam  aids  prudic.  and« 
indictat.  est,  ad  quem  diem   Pasc.  ad   queid 
diem  ex  Or.  Animaram, 

De  Termino  Pasch.  4  et  5  P.  et  Mar.  et  per 
cont.  ejusdem  Rot.  45. 
Edwardus  Newport  gen.  per  Robenuro  Ox- 
enbrid^e  ndl'  consiabular*  Turris  pred.  virtute 
bre.  dominor.  reftis  et  regino  de  Habeas  Cor- 
pus ad  subjiciend.  &c.  ei  inde  direct,  ad  Barr. 
coram  domioo  rege  et  regina  ditct.  cutn  causa, 
viz.  quod  ipse  aibi  commiss.  fuit  per  mnndat. 
conciiil  domine  reginis,  qui  committitur  Marr. 
et  immediate  traditur  in  Ball,  prout,  &i;.  Kfc 
postea  sine  die  pv  proclamation,  virlulc  brevis 
de  gestu  ct  fuma  prout,  Sic,     Ilot.  17.  ^usdeu 

De  Ter.  Mich,  anno  4  et  5  P.  et  Mnr,  per 
Cont.  ejusdem  RotuI,  II. 
Memorajid.  quod  141  die  Uctobr.  anno  4  et 
5  PhiL  et  Mar.  Edwan^uB  Newport  de  Hanley 
in  coin.  VVigorn.  nc  capt.  fait  per  Uxhridge  in' 
com.  pred,  pro  stupiciuBecmntia  fMtionis  i]ua-' 


113]  STATE  TRIALS,  3  Chablis  L  l628.-.-rie  Liberty  qfihe  &V«i 


[114 


nuKlem  p«c.  tati  vocac  French  crowDs,  per 
ipum  it  ilibi  ia  coin.  Wigor.  fier.  luppoEit.  et 
n  de  causa  per  mandatum  coucil'  dominor. 
itffl  et  rfgins  commiu,  ad  barr.  tunc  ducC 
fiW,  noi  coinmirtilur  Marr.  &c.  et  super  hoc 
idem  Edwardiu  Newport  tradilur  in  ball.  IIid- 
ax  Charge  de  Lattoo  in  can.  Essex  jjener'  Ed- 
nanlo  H^ei  de  porncbia  Saacti  Oluvi,  London, 

S.  JolnnDi  Baker,  clerico  ordinar.  London, 
unl  Gillde  pmnchia  Sand.  Tho.  Aposioli 
LondoD,  clotb-worker,  et  Richardo  Parks  de 
BmsTUfiraTe  in  can.  Wieurn.  yeOiOBii,  uique 
Mtihis  mil.  ubicunque,  &tc.  v'a,  ((uililil.  pl^. 
]iracEd.  sub  pcena  100/.  et  pred.  Edwnrdui  sub 
pan*  2D0f.  quas,  &c  Ad  queiii  diem  compe- 
nit  et  cominittitur  conslnbular.  Turris  Lon- 
■tonper  mandutum  coDcil.  dam.  regis  et  reej- 
ix  ibid,  lalvo  custodieod.  quouuue,  &c.  Et 
postea  Pas.  4  et  5  P.  «t  M.  imditur  in  ball, 
prant  paiet  per  tcrivect.  finijm  ittius  ter.  et 
pom  M.  5  et  6  P.  et  M,  etonciat.  per  cur. 
nqood  tam  per  sac  ram.  12  prober,  et  l^a- 
Siua  bominuin  dc  pred.  com.  Midd.  coram 
ioiB.  rege  et  domina  regina  hie  in  cur.  mea 
partejurat,  el  oneral.  quam  per  sacrament.  12 
prabor.  legal  homiD,  depred.  com.  Wigor,  co- 
ram Edwardo  Sannden,  et  Johanne  Whiddon 
Bill,  et  alii»  justiciar'  dictor'  'dom.  regis  et  i^i- 
Dx  ad  pacem  ac  de  diversis  felooiis  transgress, 
ctkliismalefact.in  eodetn  com*  perpeCrat.  audi- 
tai.  et  termiaand.  ossignat.  virtutc  breris  dic- 
tor. dominor,  re^s  et  reginz  eis  inde  direct. 
n  ea  parte  jurat,  et  onerat.  ad  inquirend.  de 
|cstn  et  fama  ipsius  Edwordi  compert.  eiistit 
quod  idein  Edwardus  est  de  booii  gestu  et  fuma, 
)dra  procUmatio  est  inde  facta  prout  morii  est 
KCDDd.  legem  et  conjuetudinem  reg,  Angliie, 
&c  coDcess.  est.  qnod  pred.  Edwardus  eat  inde 
CM  die. 

De  Ter.  Pas.  9.  El.  Rat.  33. 
Tbo.  Lawrence  per  Christopher' Drap.  roajo- 
rem  cmtatis  London'  Ambrosiuot  Nicnolas  et 
Bica'  Lambert  tic  ejusdem  dvitatis  virtute 
brerisdom.  regins*  de  Habeas  Corpus,  Sec.  eii 
iude  direct,  et  coram  donuna  regii\a  diet,  cum 
csDia,  viz.  quod  7  die  Novembr.  onno  r^ni 
.  dom.  EL  nunc  r^ins  Anglix  8,  pred,  Thomas 
iUiiTeiice  indicto  brevi  nominat.  captus  fuit  in 
ciritate  pred.  et  in  (irisona  dotn.  regime  tub 
cmtod.  pred.  coram  ric.  detent,  per  mandatum 
rancit' dom.  region  qui  committrtur  Marr.  &c. 
et  soper  lioc  crndit.  in  ball*  prout  patet  per 
tcfiftct.  finiom  istius  ler. 

De  Ter.  Pasch.  9  El.  Roc.  68. 
Sobertus  Constable  Ar*  per  Franciscum  Job- 
un  mil' locum  tenend.  Turris  London  virtute 
breris  dom:  regini*  de  Habeas  Corpus  ei  inde 
<fiRct.et  coram  domina  rei^nadlct,  cum  caiua, 
yk.  quod  idem  Robertas  Constable  prefal. 
Franctsco  Johson  commissus  fuit  per  mands- 
tani  priTSL  concil'  dom.  regins  s.-ilvo  cuslodi- 
nd.  qui  commiltitur  Marr.  Stc.  et  postea  isto 
•Ddeia  ter.  traditur  in  bnlL  prout  paiet  inter 
•nirect.  Rnium  istius  ter. 
Tr.  Fas.  anno   SO  EL  et  per  conC.  ^usdem 

Hot.  ea. 

Jobaooei  8toitDiD(  per  Onei^.Uopion  mil' 

YOU  111.  ■■ 


locum  teneo' Turris  domina  re^nx  London  vii^ 
luie  brcvis  Hubeus  Cor^ius  ud  subjiciend.  ^ 
inde  direct,  et  conun  diltcto  et  Adeli  Ch.  Wraj 
mil.  capit.  Justiciar,  doui.  regiuie  ad  placita 
coram  nobis  tenend.  assignat.  apud  ho^pitlum 
suum  in  Serjeams-Inn  Eleet-street  London' die 
Lunx,  viz.  13  die  Mnii  duct,  cum  caasa'vii. 
quod^pred,  Johamies  Browning  commissus  fuit 
eidem  locum  tenend.  per  mandatum  prlvuti 
concir  reginx  salvo  cuatodiend.  &c.  qui  corn, 
MaiT.  &c.  et  postea  isio  eodeni  ter.  Imditur  in 
ball'  prout  par.  per  scrivect.  fiuium  istius  ter, 
De  Ter..  Sanct.  Hilkr.  anno  40  El  Regintt  et 
per  cunt,  ejusilem  Rot.  69. 
^  Ednardus  Hareconit  par  Hugonem  Parlour 
cusCod.  prisons  domiim:  reginie  de  Gaiehoute 
infra  civitatem  Westminst.  in  com.  Middl.  lir- 
lute  breris  dominn  regine  de  Habeas  Corp"* 
ad  subjiciend.  &c.  ei  inde  direct,  el  cornm  do- 
mina regina  apud  Weslminst.  dicta  cum  causa, 
til.  quod  ante  adrent.  hrevis  pred.  sell,  7.  die 
Octobr.  an.  regiii  dom.  regin.  nunc  39,  corpu* 
Edw.  Hareeourt,  per  duos  pri«at.  concii.  dicta 
duminie  reginc  ei  commi&s.  fuit  salro  ct  secure 
cQStodiend.  certis  de  causii  ipsos  movent,  et  ei 
ignotis,  qui  commitlitur  Marr.  £tc.  et  postea 
isto  eodem  ter.  traditur  in  ball,  prout  patet  pet 
scrivect.  linium  istius  (ennini. 

De  VacnlioQC  Hillar.  anno  43  Et. 
Robertus  Cntesbie  per  Jobannem  Pbilipi 
guardian'  de  le  Fleet  virtule  breris  dominie  re- 
ginz  de  Habeas  Car|ju9,  ad  subjiciend.  Sec.  a 
inde  direct,  et  coram  Edwardo  Fenner  uno  jus- 
ticiar. duminE  reginx  ad  placita  coram  ipsa 
region  teneud,  auigiiai.  apod  Wincbesier-house 
in  b»r^  dc  Souibwark  in  com,  Surr.  diet,  cum 
causa,  viz,  quod  pred.  Robertus  commissus  fiiit 
prisona  pred.  pnmo  die  Martii  anno  4S  £1. 
War.  diverw>rum  prvnubilium  virorum  de  pri- 
vato   coDcitio  domina  regina  in  bac  verba: 

■  To  tbe  WartUn  of  (he  I'leet,  or  his  deputj  : 

■  The*e  shall  be  to  will  and  require  you,  to  re- 
'  cave  at  tbe  bands  of  the  Keeper  of  tbe 
'  Compter  of  Wood-street,  tie  person  of  Itobert 
.'  Catesble,  esq,  and  him  to  detain,  and  .lieep 
'  safely  in  that  prison  under  your  cbar^e,  untJ 
'  you  sbolt  bave  other  direction  to  the  contrary, 
'  wliereof  this  iball  be  your  warrant.' — Et  pro- 
fat.  Robertus  commissus  fuit  Marr.  per  prefat. 
Edivardum  Fenner,  et  «iatun  traditur  in  ball' 
proat  patet,  &c. 

43  Elii.  Regina  19  Jac.  Recis. 


cnstod.  prisona  de  Gatshouse  in  com.  Jaidd. 
virtuie  brevis  dom.  regis  de  Habeas  Corpus  ad 
subjiciend:  ei  inde  direct,  et  ooram  domino  leg^ 
duct,  cum  causa,  viz,  qu.id  ante  advent,  brevis 
predict,  scilicet  10  die  JuLii  anno  regnidum, 
Jac.  regisDfigratiaAiiglia,  Franc,  et  lli1i«mi« 
fidei  defenMir,  ftc.  11  et  Scot.  47  predict,  Ri- 
cardus  Beckwith  aibi  commisaus  fuit  prisonv 
predict,  sub  cubtod.  sua  linute'cjjusdrro  war- 
rant, sibi  fact,  et  direct,  per  Georgium  diviua 
proviilemiii  Cant,  .archiepiscopum  lotius  An- 
glic primal,  tc  meiropuliiun.  Uenric.  com, 
Norlltemptoa  domiuum  guardiaa.  5  portuum 


De  Ter.  Micb. 
Thomiu  Mou 


115]  STATE  TKIAI5,  S  Chables  I.  i02S.—Prwxeding»  m  Porhanan  relating  to  [llfi 

et  iin.  de  privato  coticil.  ro|l),  Tho.  com.  Sof- 
fulk  dnm.  camentr'  re^ix  familia  ac  sacr'  cun- 
cil.  dom.  reKii  tjiwnrdum  dumini  Wooton  gu- 
bcrnnior  regis  familiie,  Jobanncm  dom.  Stan- 
hfipe  tice-camerar'  regi*  famitiiB  ;  rujus  war- 
rant sequjlur  in  li«c»erhn!  '  To  AquilaWytes, 

•  Kec|iL-r  of  the  Gatehouse  in  Weslrainfcter,  or 
■  his  deputy:  Wherca*  it  is  Ihought  meet  that 
'  ftlilfs  Rayner  and  Rjchard  Beckwirh  he  re- 
'  sirnined  of  their  liberty,  and  coiamittM]  to  (he 

•  prison  nf  ihc  Gatehouse ;  These  ihail  be  to 
'  will  and  require  you  to  receive  the  persous  of 

•  tiie   snid    Rayner  and    Beckwitb   into   your 

•  charge  and,  sals  keepioK  <■>  'l^at  prison,  there 
'  to  Kmain  tititil  you  bholl  have  fiircher  order 

•  [raoi  OS  in  that  behalf,  for  wluch  this  shall  bo 
'  your  warrant.     Dated  at  Wliiiehtdl  the  10th 

•  of  July,  leiS.'— lit  poueaistocoden)  temiino. 

.   14  Jac.   per  cont,  ejusd. 

Rat.  l-ir. 

1  miles  per  Georgtuia  More 
locum  t«ueut'  lurris  dom.  rc^is  Loodon' rir- 
(ute  breiis  dom.  regis  de  Habeas  Corpui  ad 
•ubjicieud.  &c.  ei  inde  diract.  coram  tlomiiio 
reg«  apud  West.  duct,  cum  cauHn,  viz.  quod 
«nte  adventuDi  brevis  predict.  Tbonua  ribi 
comoiiitus  filit  per  warrant,  adveis.  dominis  de 
privslo  concilio  regis  sibi  direct.  &c.  Qui  com- 
iniiiitur  Marr.  &c.  et  super  hoc  tmdiiur  in  ball' 
prout  pater  per  scritect.  Ha.  isiiui  termini. 

De  Ter.  Hich.  7  II.  7-  et  per  c«Bt.  ejiudcm 
Hot.  6. 

Tho.  Bragg  junior,  nuper  de  Ynningiton  in 
com'  Hertford  gen',  Johannes  Rswleus  Duper 
tie  Lenister  in  com'  prLiI*  yeoman,  Uob,  tiheP' 
man  nuper  de  Lemster  in  com.  predict.  VVaher 
Thomas  nnper  de  eadem  in  cots'  predict,  bcp- 
•Itr,  Tho.  Bullard  nuper  dc  e«u)em  in  eoduni 
coai.  smith,  Cadwallader  up  John  DuV  nuper 
de  Kerry  in  Harchia  Wnlliie  in  com,  Salop  ad- 
jacen.  ffia.  Hej-iViald  ap  Breingham,  alias  Slter- 
fnnn,  nuper  de  Lemper  in  com,  Hereford  Slier- 
man,  et  'Ihomas  Turner  nuper  de  Kingsland  in 
com.  Ilerflbrd  cmirMr,  sant  in  custod,  Marr. 
ad  malidatum  dom.  regi«,  &c.  ac  pro  aliit  certfs 
de  eauiis  prout  patet  alibi  de  record.  Sic.  per 
record,  istius  ter.  postca  isto  lermin,  doininus 
relaxavit  inandatum  suum  «  proiecut.  predict, 
Comparuerint  per  attorn.  &o.  Et  quod  utlag. 
versus  prefHC.  Thoiiiam  Bnjgg  r«vocatur  iiio 
termiiio  et  predict.  Johannes  LUnleu*  pro  felon. 
et  murdro  predict,  traditur  iu  ball'  prout  patet 
•lihi,  &c.  ideo  hie  Marr.  de  ejus  curpore  per 
cur.  esoneratur,  &c. 

Ter.   Hitlar.  7   II.   T.   et   per   cant,   ejutdem 
Rot,  18. 

W.  Bartholomeiv,  Johannes  Bartholomew, 
Wyiielmua  Chnce,  Henr,  Carr,  Tlio.  Roteilev, 
Tho,  -Street,  Robertas  Feldoue,  et  Hen.  Bancts 
lunt  in  cuMod.  Marr.  ad  cust.  mandat.  dom, 
regis,  &c.  per  record,  isllus  termin.  ac  predict. 
AVilliclmos  Chace  pro  pace  Randnlplio  Jowelen 
inreniciid.  &c.  Pasche  senuen.  per  poscea  ter- 
min. seqnen.  dictus  dommus  rex  maodaturn 
suujn  predict,  quoad  Willietmai  Cbace  rcla.^- 


De  Ter,  Pas.  7  U.  7.  et  per  cont.  Sot.  ejti*- 

Johaunes  Beomond  de  Wedoesbury  in  com* 
Statr.  ar*  est'  in  cuslod.  Mar"  ad  mandatuin 
dom.  regia,  Stc.  per  record,  ialiui  ter'  postca 
scilicet  Trin'  7  Her.  7.  sequen'  predict,  Joban- 
nes  Beumoiid  de  maudato  pieoict.  exonerUua 
exislit  ideo  Mar"  de  so  per  eandem  cur'  exotic- 

De  Ter.  Mich,  anno  13  11.  7,  Rot.  8. 
Tliomas  Yewe  de  villa  de  Staff,  m  com' 
Stafford  yeoman,  per  Johnnnem  Shawe  cl  Bi- 
cariluui  Haddon  vie'  Lon(bm  virtutc  bre^b 
dom,  regis  de  Habeas  Corpus,  ad  sect,  ipsiua 
regis  eis  indc  direct,  coram  rege  duct,  cum 
causa  quod  idem  Thomas  Yewe  attachiatui 
I'uit  per  Bicardum  Whittington  seqeant  apud 
BuyuarU's  Castle  civitatis  predict,  et  prisouft 
dicti  dom.  r^ia  infra  eandem  civitatem  salvo 
cuitodiend,  causa  pro  suspicione  felcn,  apud 
Coventrie  in  com,' War' perpetrat,  ad  sugges- 
tioncm  WiUiebni  King  innholder,  ac  inbuper 
idem  Tbo,  Yewe  detinelur  in  prisona  predict, 
virtuie  cujusdem  alterius  quercl.  venua  ipsum 
od  sectam  Johannes  Frceniaa  acrjcunt  de  eo 
quod  inveniat.  ei  iuauflicleiid.  secur.  pacis  ia- 

Ac  ulterius  idem  Tho.  Yene  detent,  est  in  dicta 
prisona  pro  33/.  debit,  et  ^i.  6d.  dampnis  ec 
custag.  quoa  Robertus  Corbet  mercer,  ex  co^- 
nitione  ip^tis  defend,  versus  cum  recuperavit  in 
eadcm  cur,  coram  uodcm  Jiihaonc  Waiger 
nuper  vie,  Ac  etikni  idem  llio,  detinetur  io 
di<la  prisons  ad  mandatum  domini  regis,  per 
Johannem  Shawe,  aldrrinan,  clvitatia  Loodon, 
qui  committitur  MaiT.  &c.  pn^tva  scilicet  ter. 
Sanct,  Trill,  anno  19  regis  U.  7,  predict.  Jo- 
hannes Freeman  relaxavit  sccur.  pacis  versus 
euadeni  llio.  Yewe  dictus';;  Robertus  Corbet 
cognovit  ^e  (am  baiisfact.  de  debito  ct  dampnia 
predict.  Ac  Jacobus  Ilubberd  atiomat.  gene- 
ral, dum.  r^is  relaiavic  nanditum  doai.  reps, 
ac  pro  luspicione  felonix  predict,  traditar  in 
ball.  Sjmon  Little  de  Loudon  taylor,  et  Jo- 
hanni  A)he  de  Lcndon  ikinner,  uwjue  octabis 
Mich,  ubicunq;  £fc.  Ad  qui  diem  coiBperuit 
et  Robertus  TbrugmortOD  miles  unui  oustod. 
pacis  predict,  com'  Warr'  rtluni'  ^uod  DulL 
mdictament,  de  alimiibui  felon'  sivc  irwiyresa. 
versus  prefat.  Tho.  Yewe  comm.eo  et  sociis  ad 
presena  reaidet,  et  ulter,  virtute  brcris  dom. 
regia  sibl  et  sociis  tuis  direct,  per  sacrament. 
IS  probor,  et  legal,  huminum  ae  villa  de  Co- 
veutry  predict,  de  gestu  et  fama  predict.  Thome 
diligeuter  inquisiiionem  feceruQt,  et  nihil  de  eo 
preter  bonum  coram  eo  et  sociis  suis  eA  coin- 
pertuni  led  de  bono  gestu  et  (kma,  ideo  con- 
cess,  est  quod  predict.  Tho,  eat  inde  tins  die. 

Ter.  Hillar.  anno  9  H.  7,  et  per  cont,  ejnsdeni 
Rot.  li. 
'  Homfriddi  Brocbe  nuper  de  Canterbi^.  in 
Cantabr.  scholar,  per  Rnbertuin  Willoughbi* 
tiom' Brook  mil.  tcntKbalLliOBpitiidoin.Trgifk 


liT]  STATE  TRIAI3>  3  Cuahlv  I-  iOas.—llie  Liberty  qft/ie  9ul^. 


iWi 


1  Di^bie  mil.  Man^  cat'  Mar/* 
bo^iii  predict'  virtute  cujusdem  brevis  doiu. 
n^  de  HabcM  Corpos  ad  lectaia  ipriiu  ragia 
■d  HaaiJ.  reel',  &c,  kd  sect,  partis  utlog.  eis 
mde  dirtcL  coram  rej|e  ditct.  cum  caiua  viz. 
ifttoi  Idem  Humfridiu  cooiiniisui  fuit  Cooi. 
Mair'  botpilii  doin.  regis  Gt  bac  da  ojaam  tf^ 
DOB  alia  idem  Humfridu*  in  priiona  pred.  de- 
linenu',  qui  CQuiaiitUtur  Man'  &c  poitea  Pw. 
>qiwu'  m  relinijidt -mandatum  suun)  capital. 
jiHUciar'  per  Tho.  Lovett  mil,  Mten'  et  pro 
•tlii|.prea.  traditur  in  boll,  proutpatet  alibi. 

Pe  To"  Sec.  Triait'  anno  39  £1.  et  per  cant. 
Rot.  ejuwleiD  lis. 
Lawrence  Brooine  prr  Hu^oQCm  Parlour 
cuaod.  prbone  domine  regine  de  la  Gatehouse, 
muu  brevii  domine  reeiue  de  Habeas  Corpus 
ad  ubjiciend.  &c.  ci  inde  direct,  et  coram  do- 
aiiu  regina  apud  Westniiist'  duct,  ciim  cauw 
Tiz.  ifiod  prdfict.  Lawrence  Uroome  in  arcta 
OMlad.  sua  remanset  per  mandatum  duomiD 
de  concilia  dicte  domine  r^tne  pro  certidcautis 
«H  morent'  qui  committitur  Mist'  et  pnstea 
but  oodeoi  tcnuiao  traditiu  in  ball,  prout  pa- 
tit,&c. 
PsScriTect.  Fin.  Ter"  Scf  Tnn.  anno  39  El; 

Laurence  Broome  de  Parva  Baddow  In  com. 
pred.  huabuid.  tiadltnr  in  tmll'  nd  lubjiciend. 
hz.  ad  mnndat.  prirat.  concil.  dornine  rrgine 
igper  Habeas  Corpus,--- Verau 9  Rando.  Mayall 
lie  Hatfield  Bevcrell  in  com'  pred'  gencr.  ; 
Tetsus  Henrico  Odolt  de  endein  gen. ;  versus 
Will  Eckaiden  de  WeMminsc'  bricklayer ;  ver- 
ms Elc  Mor^n  de  Weslminsl'  litbourer;— 
I'terq;  sub  pens  40/.  rt  princeps  sub  peim 
100  marcsrum. — Pro  soipicione  proditiuuis 
cniu  Johaane  Smith  mil. 


Oe  Ter' Set' Micfiaelis  anno  4GI.  et  per  cont, 
Rot.'ejusdemSr. 
Tba,  Wradea  per  Hii^nam  Parbur  gea' 
otAod.  prisoae  domioe  regme  de  le  Gatebouie, 
virtate  brevii  doniina  regiiie  de  Habeas  Corpus 
ad  tabjiciend.  &c,  ei  inde  direct'  et  coram  do- 
Mina  reeiaa  apsd  Westm*  ducc  cam  cauia, 
•B.  quod  18  die  Juirii,  annn  regni  domiTie  El. 
ouc  reiine  Anglic  5S.  corpus,  &c.  infra  nomi- 
iMC  Tlo'  Wendeo  extra  cur'  eju»lem  domine 
Kpoe  coram  ipsa  domina  rcjtjna  privMi  con- 
cioi  dom.  regis  cuius  ceoor  stquitur  in  hiac 
verba,  scilicet;  '  These  are  lo  will  aiid  require 
'  jou  to  receive  into  jour  ciiartie  and  custody, 
'Ibe  person  of  John  Brocket,  kiii^ijt,  and  liim 
'  u>  retain  in  ufe  keeping  under  your  cIibi^ 
'  uatU  joD  shall  bave  furtber  order  for  bis  in- 
Msrgemenl;  nbose  commitoieotbein^  for  some 
'  special  matter  coDceming  tike  service  of  our 
'  sovereign  lord  the  king,  you  may  not  fail  to 
'regaid  this  warrant  occordiiiglj.  From  the 
'  lm)!'i  paUce  at  Whitehall,  the  last  of  Mirch, 
'  Uoy  Esq;  fuit  causa  ditentionis  pred.  , 
JoliBDois  in  prirJioa  pred.  qui  committitur  | 
Msrr.  &c  et  posEca  tnditui  iu  ball'  piout  paaj 


Ter.  Micb.  anno  13  Jac.  Hegis,  Kot.  119. 

Mila  Reyner  per  Aquilam  Wykea  cuitod- 
piiaone  de  le  Gotehouie,  virtute  brevis  dom. 
regis  de  Habeas  Corpus  ad  aubjiciend,  Die.  co- 
ram domino  rege  duet,  cum  causa  vii,  quod 
ante  advent,  brevii  pred.  icilt.  10  Julti  anno 
dom.  1013.  pred.  Milo  Reyner  commissus  fuit 
prisons  pred'  et  hue  usq;  detent,  virtute  ivarr' 
cujusdem  fact,  et  direct,   per  Georgium  archi- 

?nicopuin  Capt.  Henr.  com,  Northnmpton. 
ho.  com.  Sufrolk,  Willielm,  dom.  Knollei, 
Ed  ward  iim  dom.  Wool  on,  et  Ed>vardum  dom. 
Slanhope,  cujus  warrniiti  tenor  sequitur  in 
hac  verba  ;  '  To  Aqiiila  Wjkes,  keeper 
'  of  ihe  Gatehouse  in  Westminstrr,  or  111* 
'  deputy :  Whereus  it  is  thought  meet  tbat 
'  aiilt'b  Rejaer  and  Richard  Beckwith  be  te- 
'  SI  r:iintHl  of  tbeir  liberty,  and  committed  to  the 
'  prison  of  the  Gatehouse;  These  shall  be  to 
'will  and  require  you,  lo  receive  the  persons 
'  of  Reyner  and  Beckwith  into  joor  charge  and 
'  keeping,  until  you  simll  huve  further  order 
'  from  us  in  that  behalf,  for  which  this  shall  ba 
'  your  sufficient  narrant,  dated  at-  WhiteliaQ, 
<  tbe  10th  of  Jul;,  1613.'  Et  lisc  esc  causa 
dctentionis  sue  io  prisoiKv  pred.  qui  conimittitui 
Marr*  £cc,  et  postea  isto  codeoi  ter'  tradiiur  in 
bftir  prout  pMet,  &o. 

Ter.  Hill,  5  H.  7,  et  per  cont.  ejusdem  Hot.  18. 
Hic'us  Kverard  nuper  de  Colchester  in  com. 
Rnei  clcricus,  et  Itobertus  Wight  nuper  de 
Nonvlco  smith,  per  Ilobenum  Wi|luu|;hbi« 
tail.  dom.  de  Brooke,  senescltell'  hijspitii  diim. 
regis,  et  Jnbaniien  TurberviUe  mil'  iHarr'  boa- 
pitii  pred.  virtute  Me.  de  Habeas  Corpus  ad 
sectam  ipsim  regis  pro  qaibuidani  prodiiioni- 
buB,  et  felon'  unde  indicto  com.  Esses  indiciat 
sfflN  as  inde  direct,  coram  domino  r^e  duct, 
cum  causa,  viy.  quod  iidem  Kicnrdns  Kverar't 
M  Rohertns  Wight  comrplsg.  fiier'  custud.  Marr. 
pred.  per  mandal.  dom.'regis,  qui  ( 


Ter,  Hill.  8  II.  T,et  per  cont.  qusdem  Rot.l4. 

Roger  Cherrie  nuper  dc  NovaWinds'ir  la 
com'  pred.  yeoinun,  alias  diet.  Rn^erm  Sceat- 
ries  nuper  de  endem  in  eoilem  oem'  yeoin.  per 
.Tiiban.  Baker,  inHJorem  villEi  doui.  regis  do 
Nova  Wiiidiior  in  com.  pred.  virtute  brevis 
dom.  regis  de  llnbcn^  Corpus  ad  sect,  ipsiut 
regis  pro  quibusdnm  feloniis  et  trsn^gr.  unde  ia 
com.  Midd.  iiidictatua  est  sibi  inde  direct,  co- 
ram doniioo  regc  duct,  cum  causa,  vii.  quod 
idem  Rnger'  coii<mlisus  fuit  guol.  duifi.  re^l 
infra  villa  pred.   per  mnndat.  dom.  regis  qui 


r  Mar 


&.C. 


Ter.  Hill.  0  H.  7,  et  per  cone,  ejusdem  Rot.  14, 
Cbtistoph.iruK  Fturtun  nuper  de  Rochetier  ia 
com'  Cuutii  hackneyman,  per  Kohertum  Wil- 
loui^hbie  dom-  Brooke,  mil*  ernesdiair  hnspitii 
dom.  regis,  et  Johanneni  Digbia  mil'  Marr. 
cur.  Uarr.  hospitii  pred.  per  loandaiaiii  don. 
regis.  Et  live  est  cau»  et  udd  aln,  q«L  con- 
nuttitur  Uarr.  &c,' 


119]  STATE  TMAI^,  3  Cham.es  I.  ]fHS.—ProceedmgiinParlua)eniTdatiagto  [liO 


Ter.  Pas.  «nno  19  H.  T,  el  per  cont.  rjusdem 
Roc.  83. 
Georfius  Ureewicke  de  Loadnn,  merwr,  per 
Oiiverum  Wood  locutn  tenen.  ^risone  dam.  re- 
gis de  le  Fleet,  viicuie  brevis  dom.  regis  de 
consen'and.  diem,  &c.  ei  inde  direct,  coram 
rege  duct,  cum  causa,  viz.  quad  tdim  Gcorgius, 
'  13  Mail,  annu  19,  regis  commissus  fuit  prisone 
de  le  fleet,  per  mandntum  ipsius  dim.  regis 
salvo  cuatodieud.  sub  pena  40/.  qui  committilur 
Mart.  tic. 
Ter.  Trin.  aono  8  H,  8,  per  cont.  ejusdem 

Hot.  33. 

Edwardut  Page  noper  de  -London,  gent,  ^er 
Georgium  com.  Snlopix  senescball.  hospitii 
dom.  regis  et  Henricum  Shnmbumc  Marr.  cur. 
Mar.  luMpitJi  pred.  virtute  brevis  dom.  regis  de 
Habeas  Corpus,  ad  sect,  ipsius  re°is  Bit  con- 
aervand.  dleoi,  &c.  eis  indo  direct,  et  coram 
rege  duct,  cum  cajsa,  viz.  quad  idem  Edivardus 
captus  et  detentiis  in  prisana  regis  Marr.  pred. 
per  maodatum  dom,  regis  ibidem  salvo  custo- 
diend.  &c.  qui  committitur  Marr.  bospitii  docn. 
regiv 

Ter.  Micb.  anna  8  Jac.  et  per  coni.  guidem 
Hot.  99. 

Tho.  Cesar  per  Ttio.  Vavasour  mil'  Mar. 
boipitii  dom.  regis  et  Mnn*.  ejusdem  liospilii 
dom.  regis,  virtule  breris  domini  regis  de  Ha- 
beai  Corpus  ad  subjicieud.  &c.  ei  inde  direct, 
et  coram  rege  spud  Westiuiiist.  ituci.  cum 
causD,  viz.  quod  ante  adventum  brevis  pred. 
sell.  18  Julii  anno  regni  dicti  doni.  reKis  nunc 
Anglii,  &c.  7.  Tho  Ctesar,  io  brevi  fuit  pred. 
DoaiioBt,  captusapud  Wiiilehnll  in  com'  Middl. 
per  speciale  maiidatum  dom.  regis  ac  per  eun- 
dem  regem  ndtuiic  et  ibidem  commiss.  fuit 
prison.  Marr.  ibidem  salvo  custodiend,  quous^; 
&c.  Et  ea  fuit  causn  cnptionis  et  deteiitionis 
^usdem  Tho.  Cziar,  qui  commitlitur  prisana 
Marr.  predi 

Ter.  Sancti  Micb.  8  Jac.  Regis. 

Nisi  pred.  seneschal!,  et  Marr,  bospitii  dom. 
regis  iuiiicieiiter  reiurn'  bre.  de  Habeis  Corpus, 
Tho.  Cesar  die  Mercur.  per  quinden.  Saiict, 
Marliui  defeodens  eiunerabitur. 

Ter.  liill.  IS  Jac.  Rot.  153. 

Jacoba*  Denaislres,  Edwardns  Emerson, 
Geoigius  Brookcshall  et  W.  ^ephens,  per 
Tho,  Vavasour  mil' Marr.  Marr.  hospitii  regis 
viilute  bre.  dom,  regis  de  Habeas  Corpus  ad 
Mibjiciend.  inc.  ci  inde  direct,  coram  domino 
r^e  Bpud  Westminst.  duct,  cum  causn,  viz, 
quod  ante  Hdvemuni  brevis  pred.  scilt,  99  Ja- 
nuar.  auuo  regis  Jacobi  Anglis,  Sic.  IS,  et 
Scot.  4,  pred.  Jacobna  Deinaistres,  Edwardus 
Emerson,  Georeius  Braokesball,  et  W,  Ste- 
phen* in  brevi  huic  schedul'  annex,  nominal, 
commiss.  fber'  gaol'  Marr.  hospitii  dom.  regit, 
pro  causis  ipsum  regem  et  servic'  sniim  langen. 
<t  concemen.  Et  hac  est  cnusa  caplionis 
pred.  Jacobi,  Edwardi,  Georgii  et  Willielii 
poMM  ituncilHUi  remitUCur  pr*rtt.  Mlrr.  ho»- 


Ter.  Hill.  19  Jac.  Rf^ 
Samuel  Saltonstall  miles  per  Johannem  Wil- 
kiason  arm'  guard,  de  le  Fleet,  virtute  hrecis 
dom.  regis  de  Habeas  Corpus  ad  subjiciend, 
&c.  ei  inde  direct,  et  coram  domino  rege  ipnd 
Westminst.  dnct.  cum  cause,  vii,  quod  pred. 
Samuel  commiss.  liiil  prisoiw  pred,  11  Manii. 
1608,  per  warrant,  a  duminis  de  privaio  conci- 
lia dom.  regis  et  quod  detentut  tiiil  etiam  idem 
Samuel  in  prisona  )ired.  virtute  cuJDsdem  ordi- 
I  cur.  Can'  dom,  regit  fact,  cujus  ordini* 
r  pBtet  per  rot,  record,  istius  termini  ad 
quem  diem  pred.  Samuel  remittitur  prison* 
pred,  Et  secundus  dies  pros,  ler'  datus  est 
guardian,  prieoue  pred.  aa  emendand.  remm. 
sutim  sufficien,  Bup«'  pred.  bre.  de  Hibeu 
Carpus,  el  quod  (nncinlulerit  hicin  cor*  corpus 
pred.  Samuel  Saltonstalt  mil'.  Ad  quem  qui- 
dem  diem  prefat.  guardian,  prisons  pred.  saper 
pred.  bre,  de  Habeas  Corpus  retom.  quod 
pred.  Samuel  commissus  fuit  prisonz  pred,  11 
die  Mariii,  1608,  per  warrant,  a  dom.  de  pi- 
vac'  concil.  dicti  dom.  regis  apod  Wbitdiall 
tunc  seden.  et  quod  poslea  11  die  Febr.  16II^ 
commiss.  fijit  eitra  cur.  Cane,  dom.  regis  apod 
WestminsL  prt>  contemptu  suo  eidem  cnr. 
illat.  Et  quod  detent,  fiut  eiiom  idem  Samusl 
io  prisona  pred,  per  mandat.  dom.  cancellar' 
Augiise  super  quo  pred.  Samuel  iterum  remitli- 
tur  prisons  pred.  et  ulterius  die^  dat,  est  pre- 
tat,  guardian,  nd  emendand.  retom,  suum  inper 
Habeas  Corpus  ver,  defend,  prout  stare  voluit 
uaq;  diem  Jovis  prux'  Mens.  Pasch.  Et  tunc 
nd  habend,  corpus,  &c.  Ad  quaov  diem  pre- 
Ut,  guardian,  intuht  corpus  bic  in  cur'  et  re- 
turn* super  Habeas  Corpus  quod  pied.  Samuel 
commiM.  fiiit  prisone  pred.  11  die  Martii, 
1608,  rirtiite  cujusdem  wHmrnti  a  dominis  de 
privato  f^ncir  dom.  regis  tunc  seden.  apud 
Wliitehall,  el  quod  ciiam  idem  Sam.  commiss. 
fuit  prisontB  11  Febr.  anno  r^it  Jac.  8,  pa 
cur.  Cane.  dam.  regis  apud  WtstminsL  tunc 
eiisten,  pro  quadain  contempt,  per  eMidem 
Samuel  eidem  cur.  ill^.  et  perpeirat.  proiiide 
salvo  custodiend.  qui  remittitur  priionc  pred- 


Samuel  Saltenstall  miles  per  JohaDnem  Wil- 
kinson guardian,  prisons  de  le  Fleet,  virtute 
brevis  dom.  regis  de  Habeas  Corpus  ad  subji- 
ciend. et  recipiend,  &c.  ei  inde  direct,  et  corain 
domino  rege  apud  Westrabst,  duct,  cum  ciiusa, 
viz,  quod  pred,  Samuel  Salconstail  commissus 
fjiit  nrisonii  pred.  19  die  Martii  anno  regis 
JaxKD,  Anglie,  &c,  seito,  virtute  cujusdsm 
warrant,  a  domiois  de  privat.  concilia  dom. 
regis  tnnc  seden.  apud  Whiiehnll  cnmrniuus 
tiiit  etiam  idem  Samuel  Salutnitall  niles  P"- 
sonn  pred.  IS  die  Febr,  anno  ]G10,  et  anno 
r^.  Jac.  Angliie,  &c.  8,  per  cnnsiderat.  cur. 
Caneell'  dicti  dom.  regis  apud  Wealminst.  pro 
contmipt,  eidem  cur.  sdtunc  per  pred.  Samuel 
itiat.  ibidem  proi lid.  salvo  custodiend,  Et  lieC 
sunt  cauas  captionis  et  delentionis  pred.  Ssm. 
Saltonstall  mil.  in  prisona;  pred,  ciyus  taowi 


121]  STAra  TRIALS,  3  Chailej  I.   162S.— the  Liberty  qf  the  Su^ect.  (IM 

nqdoiil  diem  et  tocnni  infra  conleDt.  paral. 

bMO  prouc  mihi  precipicur. 

TntConts^tkeRu:atiOs  not  frialtfl,  which 
were  mid  by  nV  K^ard  littUloa. 

bierRcconl.  Domini  RMiaCaroli  in  Thesaur. 

Rccept.  Scacorii  toi  sub  cuitodia  Tbesaurar. 

ct  Cunerar.  iludeiu  remanent,  viz.  Pi.  coram 

ipso  Domi^io  Hrge,  et  Concilia  suo,  ad  Pai^ 
.liameotam  suum  ^st  Pasch.  apud  Londoa 

in  Maner'  Arch-F.piscopi  Ebor*,  anao  Regni 

Domini  Regis  Ed.  S.  SI.  Inter  alia  sic  cod- 

dnelur  at  lequitur.  Rot.  3.  indono. 

Stephanui  Rabaz  Ticecom^  Leic.  et  Wan*. 
tsnun  ipso  rtomina  rege  et  ejus  concilio  arena- 
M  M  u  ntioacni  poutus  ite  hoc  quod  cum  J. 
B.  E.  H.  &  W.  H.  nuper  baUiT-  iptiui  rice- 
ccmitii  |)er  dom.  regein  fuisunt  assign'  ad 
jidIm  damiai  regis  deliberand,  eidem  ric' 
qooidam  W.  P.  per  quendam  appdlaiorem 
UK  adieDtam  eorum  jnaticiarioram  ibidem  ap- 
fdtat  et  capt.  vivente  ipso  appellitore  usque 
diem  driiberalionij  coram  eis  tact,  demiss,  per 
pleiium  coiTtra  tbrmam  itaiati,  8tc.  Et  etiam 
^ndam  R.  de  C.  qui  de  morte  hominis  judi- 
cata) fuit,  et  per  eundem  vicecomit'  capiat, 
itan  R.  line  ferris  coram  ciwieni  julliciaV'  ad 
Mi  be  ratio  nem  prad'produxit  contra  consuetu- 
liiiMm  regni,  et  similiter  quendam  Walterum 
ilimD  Walccri  le  Persone  qui  per  pneceptum 
NtDttii  Warwici  captas  fait,  dimisit  per  pletiatn 
coDlra  Tocem  et  preceptum  domini  regis  ;  cum 
idem  dnmiaui  rex  per  literas  sun?  sub  privato 
Hfillo  ma  cidem  vicecomit.  precipice  quod  nulli 
pa  preceptum  pred.  cam.  Warwici  cept.  ali- 
ijoiDt  graUam  vel  favorem  &c.  8:c.  Et  super 
Wprefat.  J.  B.  qui  p'resens  est,  et  qui  fuit  pri- 
BiBs  justiciar,  pred  premisi.  recordatur  et  pred. 
ncecunci  dicit  quoad  pred.  W.  P.  ipse  nun- 
qoun  a  tempore  captionis  ipsios  W.  per  pr*d. 
•ppelLuurem  demiss.  luit  per  plciiom  aliquam 
ulaailvent,  pred.  justiciar.  Imodicitquodper 
dimid.  anni  ante  edventnm  eorum  justiciar, 
taptot  fuiL  Et  quoad  pred.  R.  bene  cogorra- 
titquod  ipse  dimiait  cum  per  plenam,  et  boc 
bene  fic«re  potuit  mCione  ac  authoritale  officii 
*a,  eo  quod  captas  fuit  pro  qundaqn  aimplici 
lnns|[reasione,  ct  non  vn  aliqoa  fetnnia,  pro 
qsa  rrptqtiari  non  potoit.  £t  quoad  S.  viz.  W. 
nliam  PeraoDe  bene  cognoscit  quod  ipse  captus 
fliil|iei  preceptum  preo.  com.  Wanvici  et  quod 
dnusit  com  per  pleiiam.  Sed  dicit  quod  buc 
fcot  ad  ro^atuffi  quorundam  de  btniDitio  el 
nria  dian.  regis,  qoi  eum  specialiterinde  rD|[>- 
•mat  pta- literas  auBs.  Et  super  boc  idem  vice- 
Ma.  quMivit  per  dooi.  regem  qois  eum  ronavit, 
tt  literas  niaa  ei  direiit,  et  ubi  literK  ilia  sunt, 
tta.  qoqd  Walterni  de  Languin  earn  per  literas 
>ai9  inde  ragavit,  ted  dicit  quod  litere  ills  sunt 
ii  partihus  luia  Leic.  Et  super  hoc  idem  vice- 
emiM  profert  bre.  djm.  itps  de  privato  sigillo 
idem  nc.  direct,  ifuod  testatur  qaod  dommus 
m  cidem  vie.  precipit,  qaod  omnes  illos  iraas, 
contn  pacem  et  de  quibus  comes  Warrtici  ei 
•ore  ftcit,  caperet,  et  salvo  custodir.  absque 
■iitpairMiaeiihcictnla.    Et  qniaprcd.jujti- 


ciat'  eipresse  recordat.  quod  ipii  et  tocii  itii  per 
bonam  ettcg^em  tnquisiilianem  de  militibus  et 
aliis  coiumunibua  carain  eis  fact,  inveaernnt 
quod  pred.  W.  de  Petling  dimiuus  fuit  per  ple- 
viam  per  magnum  icinpus  note  odvenium  eo- 
rundein  jo&tic.  usq;  adventum  eorundem  et  per 
vir.  pred.  Et  etiam  quia  pred.  vie.  cognoscit 
quod  pred.  R.  ilimiMus  fliit  per  pleviom  per  ip< 
sum  vie.  el  hoc  die.  quod  bene  facere  potuit,  eo 
quod  captus  fuit  ^ro  levi  tran  stress  ion.  et  per 
record,  ejusdein  justiciar,  compert.  e^t  qaod 
captus  fait  pro  morte  hominis  quod  est  contrar. 
diet.  pred.  vicecoiit.  et  umiliter  quod  idem  vice- 
corn.  cogDorit,  quod  recepit  literaui  doin.  Tfpa 
per  qaam  Xfx  ei  precepit,  quod  uullam  gratiam 
fecerit  illis  qui  capt.  fucr.  per  precepL  pred- 
com.  et  idsm  vicecomea  contra  preceptum  illad  - 
diuiisit  pred.  Williclmurn  filiura  Walteri  per 
pleviam  <fu  captus  Hiit  per  preceptum  pred. 
comitjs  prout  ioem  vicecomes  fatetur.  Et  sic 
tam  ratione  ipsius  lran«gr.  quain  alianim  predi 
incidit  in  penam  ttat.  coos,  est  quod  pred. 
vicecomes  cnmqiitiatDr  prisome  juxia  formam 
statu ti,  kc.     . 

Ei  Rot.  farliamenti  de  anno  35  Regis  Ed.  3, 
Numero  9. 

Primerement  que  le  Grand  Cbartre,  et  le 
Chartre  de  Forest,  et  lea  autres  statuts  fait  ei» 
son  tempi  et  de  ses  pn^eiiitnrs  per  profiu  de 
jui,  et  de  la  commenaliy  soient  bien  et  ferment 
gardes,  et  mise  en  due  execution  sauns  diittu*- 
bance  mftttre  on  arrest  fiiire  le  centre  per  spe- 
cial mandement,  ou  en  autre  manere.  Nustre 
senior  le  rov  pw  assent  prelates,  duket, 
comites,  barons,  et  la  commenaltie  ad  ordeine 
et  estabili  que  les  dils  chartrrs  et  atatuts  soient 
tenui  et  miae  en  eiecutian  seloa  le  dit  Petitioo, 
Stat.  36  Ed.  3.  Numb.  99. 

Tten,  conuuc  il  soit  contenui  en  le  Grnad 
Chartre  et  aulres  statuu  que  duI  home  sera 
prise  ne  imprison  per  special  mandenient  sauni 
mdiclment,  ou  autre  proccs  a  feire  per  le  lej 
et  soient  foits  ad  estre,  et  U'icore  est  que  ple- 
BUres  gents  sont  efnpescliea  prise,  et  impnion 
samis  indictemcnt  ol  autre  proces  fait  per  Ic 
ley  sur  eui,  cibien  del  cliose  fait  hors  de  le 
furciC  le  roj,  come  per  autre  cause  que  piese  • 
uostre  dit  sr.  command,  et  deliv.  ceux  que  sont 
ami  prise  per  tiel  special  mandement  contre 
le  forme  de  chsrtres  et  statuta  arant  dits. 

Item,  pieat  on  roy  et  si  nul  de  sent  greine 
vingne,  tt  fait  te  plamt  et  droit  serra  fait  a  luy. 

Pariiament.  anno  43  Ed.  3.  Numero  12. 
Item,  pur  ceo  que  plusoura  de  vosire  come 
■out  amerce  et  di^lurhes  per  faulx  accuior* 
qucux  loot  lour  accusemcnts  plus  pur  loor 
veonesDces  et  siugulers  profits  que  pur  le  profit 
de  roj  ou  deson  ueuple. 


U&ire 


;n.d« 


le  conceil  roy  per  brief  cu  . 
roy  mh  grmide  pain  encouutre  la  ley,  Plese  a 
nostre  sr,  le  roy  et  son  conceil  pur  ilroit  gou- 
vernmcnt  de  son  peuple  orrieigu  que  'sj  deiire 
ascuQ  accusors  purpose  fucun  mniire  pur  profit 
dn  roy  qut  cde  matire  Boit  maoder  a  set  juftieM 


13S]  STATE  TRUI&  SCuaussI.  ia2S.—Pr<xeediii^mParliameMrekiptgio  [lU 

del'  im  banke  ou  del'  autrs,  ou  d'awites  dent 
«nquere  «c  tennioere  selonqua  la  le;,  et  >i  le 
touclielaonsour  uu  putieeic  sasont  a  U  tome 
ley,  et  qiie  null  home  soit  la'n  a  rcaponilere  sana 
preaeDlmEOt  deut  justicet,  ou  choiede  record, 
ou  per  due  praces  et  bciete  original,  mIod  Toii- 
cieut  ley  de  la  lerre,  et  si  rieo  desire  euovuot 
■oil  raital'  eocaatrc,H>ic  voideen  le;,  et  teiui 
pur  error.  I'ur  ceo  que  cetU  Article  eu  Ar- 
ticle de  le  Craude  Chnrtre  le  roy  Toet  que  ceo 
•oil  fail  cotoe  la  Petition  demands. 
Ex  Kot,  ciaus.  de  anao  Hegni  Regis,  Edw.  1. 
primo,  Membrano  1. 
'nkCMiiRs  de  Clere  de  Beckwith  captus  et 
detent,  tn  prisoaa  de  Northainptan  pro  trana- 
gressiane  fureK.  habet  liter*)  flagera  de  Clif- 
ford, justiciar'  lbr«9t.  citra  Trent,  quod  pbnatur 
■  ball.     Dat.  apud  Stinct.  Martk.  Hngn. 


Xiondun  30  die  Octobr. 

MecnbraoD  T.     * 

Sicpbanos  de  Lindley  capt,  et  detent,  in  pri- 

sona.pro  irantgrei.  per  i[euni  fact,  in  forest 

regis  de  Lindley  habet  liieras  regis  GaUrido  de 
Ncvill,  jusdcinr.  ultra  Treut.  quod  p<MiBtur  per 

Membrano  B. 

Tlio. -Spademrin  capt.  et  detent,  in  pHsona 
de  0x011.  pro  morte  Willielmi  Winne  unde 
rectal,  est,  habet  litenu  regis  vicec.  Oiod,  quod 
ponalur  per  ball. 

M^mbrBno  9. 

Williclmus  de  Deane,  Matheus  Crust,  Roger 
de  Bedell,  W.  Halfrench,  RobeniK  Wyai, 
Aleiaader  Ilareing,  Harry  de  Shome,  Nicolas 
de  .Suodilande.Turgesiu)  de  Hertfield,  Uobertiu 
de  Pule,  ct  Hicardus  Galiot,  capti  et  detent,  in 
prisona  de  Cant,  pro  morte  Qall'ridi  de  Cottilfer 
UDdu  appellati  sunt,  liabenc  literas  rcfjii  vie' 
Kbd.  quod  ponanlur  per  ball'.  Det,  33  Mailii. 
Glaus,  aono  3  Ed.  I.  Membr.  13. 

Rex  Rugero  de  CliSord,  juiticiar.  forest,  cilrn 
Treut.  mandamui  vobis  quod  si  Robeitus  Un- 
win,  capt.  et  detent,  in  prisona  nostra  de  Ayles- 
bury pro  trauiEres.  forest,  nosir.  invenerit  vobis 
VI  probos  et  Tegales  homioes  de  ball,  vestra 
qui  manuciapiant  eum  habere  coram  jusLidar. 
itosU'.  ad  placita  forest,  cum  in  partes,  &c.  nil 
stand.  ind«  reccaC.  tunc  apud  Sabertum  ei  se- 
cundum nssisum  forest.  Fuer.  repleg.  perdictos 
duodecim,  interim  traditur  in  ball,  sicui  pred. 
est  et  babeUit  nomina  illorum  19  honuBum. 
£l  hoc  bre.  f(c.    Dat.  97  Fcbruar. 

Clans,  anno  3  Ed.  1.  Num.  14. 
Unwynusde  Boycot,  GalfridusdeWickeram, 
ei  Hugo  de  Stone,  detent,  in  priaona  re^s  de 
Aylesbury  pro  transgr.  venationii  habuiC  bre. 
direct.  Rogero  de  Clifford  justiciar,  forest,  quod 
M  secundimi  assis,  forests  eruat  repleg.  usque 


Nuojero  IS. 

Gullbert  Conrny  de  Keddinjcton,  et  Hugo  )e 

Taylor  tie  Reddunion  capL  tt  dcteU.  in  pii- 


sona  sancti  Edmuudi  pro  morte  Eiimundi  Bunt- 
ing  unde  rectati  sunt  hibuerint  lilenii  r^is. 
vie'  Suff.  quod  ponantur  per  ball. 

Ctaus.  anno  3  Ed.  1.  Num.  11. 

Galfrirlns  de  Hairton  caplut  et  detentus  in 

prisona  regis  Ebor'  pro  morte  AdeP  Ckrke, 

unde  rectatus  est  babet  literas  regis  vie'  Ebor. 

quod  ponalur  pec  ball.    Dat.  apud  Wettmiut. 

Numero  SO. 

Eobertus  Belbarbe  captus  et  detentus  in  pri. 
soiia  de  Newgate  pro  morte  Tbomti  Pollard, 
unde  rectalus  est  halieC  literas  i^gis  vie.  Midd. 
quod  ponalur  per  ball.     Dat.  38  Februar. 
Claus.  num.  4  Ed.  L  Uembi.  S. 

Mandatum  est  Rado  da  Sandwioo  quod  siW. 
da  Patiare,  &  Jo.  Iiliu4  ^ui^  Walterus  Ifooiev 
Walterus  Conven,  lien.  Path,  et  W.  Cadecan^ 
capt.  at  detent,  in  prisuoa  t^s  de  S.  firionoU 
pro  transgi.  for.  unde  reiHali  sunt,  inyemrioC 
sibi  13  probos  et  legates  hamiilf  s  do  ball,  sua, 
viz.  quilibet  eorum  13  qui  eos  manucep'  habere 
coram  justiciar,  regis  ad  placita  IbrasL  cum  iit 
partes  illas  venerint  ad  Hand,  inde  rcctat.  tunc 
ipsas  Willielm.  Jobaniiem,  Waltnrum,  Walt»- 
'rum,  Heurieum,  et  Willielm.  pred.  13  si  secun- 
dum assisa.  fuer.  repleg.  tradantur  in  ball'  nl: 
pred,  est,  et  habeaiit  ibi  oomina  illorun  18  li»-. 
minum  et  hoc  bre.  Test.  Rege  apud  ball'  loouin, 
r^is  30  die  Augusti. 

Clous,  anno  4  Ed.  1.  Memb.  10. 

HenricuB  Blius  Rogeri  de  Kenn  de  Cotters- 
brooke  capt.  et  detent,  in  prisona  nostra  Nor- 
tbamptao  pro  morte  Simonis  de  Charrettell, 
uoile  appeilatus  est,  habet  literas  regis  vie* 
Northampton  qund  ponatur  per  ballium. 

Claus.  anno  5  Ed.  1,  Memb.  1. 

Mandatum  est  Galfrid.  de  Neril  justiciar. 
forest,  ultr,  Trent,   quod   S.   Walterus  de  la 
Greene  captui  et  detenius  in  prisona  de  Noli- 
Etngham  pro  transgr.  for'  invenerit  sibi  19  pro- 
bos et  legales  homines  qni  turn  luanueapiant, 
&c.  od  Etand'  inde  rectar.  secundum  nssi's.  for' 
regis  tunc  ibidem  Walter,  pred.  19  traditor  in 
ballium  sicut  pred.  est.     Dal.  16  Not. 
Membrano  3. 
'  Tbomnsde  Upwdl  et  Juliana  uiorejus  Capt.. 
et  deCeot.  in  prisona  de  Wynbateibam  pr<» 
morte  Stepbani  Soulbel,  unde  rscCaL  suut,  nn- 
beiH  Ulei^  vie'  Nnrff.  quod  potkontur  per  baU 
Uam.    Dat.  npud  Rothclm  2il  ilie  Septwnbi- 
Claus.  anno  6  Ed.  L  num.  9. 

Bitlierua  Pestlecaptui  et  rietentai  fiiit  in  pri- 
sona r«gis  de  Norwio,  pro  morte  Julinnn  quon- 
dam  uior*  sue,  unde  rcotaiui  est  et  habet  lite- 
ral vie'  NoriT.  quod  ponatur  per  ball'  Teste- 
Rege  apud  WesDniiist  leNovcmb. 
Membraoo  4. 

Mandatum  eKvic'NotuniEbamqnodsiTIio, 
de  Cudart  rectaC.  de  tranwr.  forest,  quod  fe- 
ciMe  dicebatur  iu  forest,  de  Sberwntxl,  iiivene- 
ril  sibi  sex  probas  et  Icgales  hoounei  de  ballivK 
sua  qui  eu<D  ^anucap^  haber*  Gacaa)'  wgiB  mI 


laaiMhriim  regis  nd  stand,  rect  coram  tege  cum 
rex  tndc  cum  eo  loqui  Tohicric,  tunc  pred. 
Tbo.  prrd.  Sdx  homioib.  inidac  in  ballimn 
jnta  manucapt.  tupntdict.     Dat.  15.  die  Dc- 


STATB  TRIALS,  3  Cukklm  L  1638.— fV  Lfficrty  qftke  StAjtct.  [ISU 

ric'  Norff.  quod  ponaior  per  bull'.    Teste  regn 
ipud  Sbeene  39  Jar. 

NoRiero  18. 
Johnnofi  Frere  optus  et  detciit.  in  giole 
regis  Oxon.  pro  moite  Adn  de  Eficlotgh  uuHc 
rectat,  est  hibet  lit«n»  regia  vie'  Devua.  qaud 
MUar  per  bait'.  TeaCc  apud  Westminst.  6 
lecembr. 


Membrauo  4. 

Tbo.  BiirraU  capuu  at  detent,  in  prisona 

tt^  Eion.  pro  inocle  Galfrid.  Geffiird  aade 

rectan.  MI  twbet  literas  don.  r^it  vie'  Devon. 

*|uu<I  poDBtur  per  ball'. 

CIhus.  anno  1  Ed.  3.  Membi.  1. 

Jobannn  Brjiin  de  Rolliuwriih  ciipt.  el  de- 
(mt.  in  piiMxia  revis  Oxod.  pro  morte  Johan- 
na  de  Suttou,  uode  rectat.  est  habet  literal 
recis  vie.  Oian.  quod  ponalur  per  ball,  usque 
jiTlnl.  asiis.  si  en  occaaione,  &c.  Teste  Rege 
apnd  Bristol,  IB  Junii. 

MembraooS. 

W.  Spore  Capdl.  capt.  et  detent,  in  prisonA 
wtga  Oion.  pro  moite  JahanniB  Spore  unde  in- 
dictoius  est,  ec  habet  literas  regis  vie'  Devon, 
qoMl  poDatur  per  ballioio  usque  ad  proi.  OHts. 
■I  eft  oocBsioite,  &c.  Teate  liege  apud  Windsor 
S8  die  Mail. 

Nuraero  10. 

Gilberius  Faitchlld  cnpt.  et  detent,  in  gaole 
regis  DoTctiESter  pro  morie  Henrici  de  L«ngtoii, 
undo  iodictat.  est  babet  literal  quod  ponatur 
per  ballium  usqne  ad  prioi'  ai«iss.  Tesw  Itege 
apnd  Westminst.  38.  Febniai'. 

aaos.  mnno  2  Ed.  S,  Hemlir.  1. 
WiDielmus  Sandie  He  Cobtmin  capt.  et  de- 
tent, in  prisona  regis  Cant,  pro  morte  Johonnts 
deSpriak,  JobaiinisErniDnade  DuiibeHie,  unde 
rtctatui  est  habet  litem  regis  vie'  Kane'  quod 
ponalnr  per  ball'  usque  ad  primnm  nssi*.  si  ea 
oecasiane,  &c.  Teste  Rtge  apud  Ceitre.  39 

Radolph.  Corjna  capt,  et  detentus  in  ^le 
regis  de  Lincotne  pro  morte  Willielnll  filn  Sj- 
monis  Porter  uode  rectat.  est  et  habet  litem  re- 
gis vie"  Lineoine  quod  ponatur  per  ball'  usque 
•d  primam  assb.  si  ea  occaaione,  &c.  Teste 
Bege  apud  Sbeene  3  diei  Junii. 

Membraoo  T. 
Jobanne*  de  Oitlierd'capt'  et  detent,  in  pri- 
noB  i«gis  Ebor'  pro  morte  Mathei  Sunpaon  de 
Ebor*  DBde  Daetatoa  «st  habet  bterai  Kfpt  vie' 
Eboi'  quod  ponatur  per  ball*  usque  ad  priio' 
assis.     Datapufl  LaogeleSOdieAfriUa. 

Clans,  3  Ed.  3.  Membr.  13. 

Adam  de  fepper  captus  et  detent  in  gaole 
s^is  Ebor'  pro  morte.  Henrici  le  S;mer'  de 
Eastrick  tttuie  roctatus  est  habet  literal  regis 
vie'  Ebor'  quod  p«Miat'  per  ball'  usque  ad  pri- 
nain  aMii.  Teste  Hw«  apod  WeaimiDSC.  T  die 
Febr. 

N'omero  14. 

Maijareta  uiior  WiHielmi  Calbet  capta  et 
Ittcoca  in  gaole  reeisNorwici  firo  morte  Agoetis 
Glus  Willielmi  Calbot,  et  Matilda  sororis  ^u> 
dea  Agnetis,  onda  tectata  est  babet  litam  regis 


Clous,  anno  4.  Ed.  3,  Meinbr.  7. 

RobertU!  Sherere  cape,  et  detent,  in  gaole 
regis  de  Colcestr.  pro  roorte  Roberii  le  Moigne, 
,unde  rectat.  est  habet  litcras  regis  vie'  Easet 
quod  pooalur  per  ball*  usque  ad  priai'  assis. 
Dat.  33  die  Mail. 

NumcHi  8. 

W.  filius  Roberti  le  Fihbere  de  Shirborne 
capt.  et  detent,  in  gnole  regis  Ebor'  pro  iBorie 
Roberti  le  Modus  de  Norton,  unde  i        ' 


Ckus.  anno  4  Ed.  9,  Numero  33, 
Ttiomas  Ellis  de  Stanford  capt,  et  detent,  in 
priscinn  regis  Liucilue  pro  motte  Miehaelis  6\a 
willielmi  Oe  Fodering,  unde  rectal,  est  habet  li- 
teras  regis  vie.  Lincolne  quod  ponatur  per  ball' 
usque  fd  prim,  assis.  Teste  i^e  apud  noram 
Westmonast.  8  die  Septembr. 

^  EdwuidCokb  took  up  the  Argainent,  as  Ry 
theretioiuil  partoftbeI«w,Bwl  began  with 

this  IimODUCTIOK.* 

Your  lordships  have  heard  seven  acts  of  par- 
liament in  point,  and  tbirty-one  Precedents  sum- 
marily collected,  and  with  great  nndersianding 
delivcrad ;  which  I  have  perused,  ond  ondei^ 
, stand  them  nU  ihoro-jghlj^,  and  that  there  was 
not  one  of  ihem  againn  the  Resolution  of  the 
house  of  commons.  Twelve  of  ibe  Precedeuti 
are  in  ttrminit  lermiaantihii,  a  whole  Jury  of 
Precedents,  and  all  iti  point ;  and  to  my  under- 
standing, they  admit  of  no  ansvier  :  but  I  am 
persuaded  io  my  conscience,  |hat  a  number  of 
ihem  was  never  shewed  nt  tlie  King's-bencb,  be- 

■  '•  "Hie  Lord  Piesitjent,  who  reported  the 
Conference  to  the  house,  b^un  thus:  TheCon- 
ferenee  upon  Monday  last  with  the  lower  liouie, 
was  about  the  Liberty  of  the  Sutgect;  to  set 
this  forth,  they  employed  four  Speakers  :  the 
fim  was  sir  Dudley  Diggs,  a  man  of  a  voluble 
and  eloqneat  speecti,  his  part  whs  ibe  introduc- 
lioD ;  the  second  was  Mr,  Littleton,  r  grave  and 
learned  Inwver ;  whose  part  was.  to  represent 
the  Resolution  of  the  house,  and  their  grounds 
whereupon  they  went;  tte  third  was  Mr.Sei- 
den,  a  great  nntiquaTy,  and  a  pregnant  man,  his 
part  was4o  sbcw  the  law,'and  the  precedents  in 
point;  the  fourth  was  th?  lord  Coke,  ihnt  fa- 
mous reporter  of  the  law,  whose  part  was  to 
shew  the  reason  of  all  ihnt  the  others  had  said, 
and  all  that  which  was  said  was  but  an  aiGrm- 
-ance  of  the  common  law."  From  a  MS.  be> 
longing  to  the  late  Peter  le  Neve,  esq. ;  aitd 
writren  at  that  time,  wherein  iheConfErencc  ■ 
reined, 


197]  STATE  TEIIALS,  3  Charles  I.  Ifi28. 

cajMC  I  know  out  of  wlMwe  quiver  two  of  than 
came,  and  that  thn;  were  not  known  befure,  t 
am  much  traniporteri  with  joy,  because  of  ibe 
hopes  to  proceed  with  goud  succesq  in  this 
weiahtj  bnsinm,yoi>r  iurdships  t>eing  so  full  of 
juttice,  and  Cba  very  theme  and  subject  doth 
Jiromise  success,  which  wni, '  Corpus  cuin  causs,' 
tiie  freedom  of  tin  EDjjliahman,  not  lo  t>t  im- 
prisoned  n-itbout  cause  tbewn;  which  is  my  part 
to  shew,  and  the  rettsan  and  the  cause  whif  it 
Aould  be  so.  And  Iduubt  not  but  we  Malign 
oo  happily  ;  and,  my  lurds,  it  would  be  uimea- 
Buiable  to  he  pruhx  and  copiuus, because, 'quod 
'  intempestiun  injiicuiiduui.'  I  wou'til  8)  eak 
here  aiittle  <o  some  points  which  are  not  so 
clear  and  obvious,  for  otherwise '  peispicua  veni 
'  ucin  sunt  prjhandn,'  and  to  [ildgold  were  idle 
and  lUperfluout;  therefore  shall  briefly  clenr  Id 
your  lordships  tome  doubts  madeof  tlie  Statute 
«f  WeatminUer,  which  says.  Sheriffs  and  otl>eni 
.  maj  Dot  replevy  men  in  prison  Ibr  four  causes; 
1.  For  death  of  a  man. 
S.  Commandment  of  the  king. 

3.  Absolute  command  from  ilie  Juslicei. 

4,  For  matters  of  the  forest. 
I  was  oncea  Judge  of  the  KiiigVbench,  and 

did  wander  how  the  Judges  of  these  limes  thus 
interpret  ibe  Statute.  Tlie  Statute  only  shews 
what  Sheriffs  can  only  do,  by  woy  of  repltvip; 
the  SheriIBi  Court  is  a  petty  and  base  court,  and 
not  Qf  record,  where  theSheriff  is  not  the  Judie, 
but  the  Jurors,  thai  is,  John  a  Noke,  and  John 
a  Stiles,  William  Koe,  and  John  Doe,  and  such 
worthiei  ot  these.  Aeain,  the  Statute  saith 
there,  he  cannot  be  replevied  if  he  be  taken  for 
the  death ofu  man;  and  do  marvel,  whoever 
thought  it;  for  the  Scripture  snith,  '  Sianeuis 
'  nulTo  modo  expinri  potest  nisi  sanguine.'  But 
if  he  cannot  be  tliere  replevied,  at  the  KingV 
liench  he  mny,  it  is  there  done  every  day.  Mr. 
SberilT,  you  should  replevy  a  man  in  such  a  case, 
trgo,  not  hail  him,  mv  lords  the  Judges,  (nan 
tequUur):  What  not' Judges  biiil?  Whatnot 
the  King'S'bench,  the  highest  Court  of  Record 
of  ordinary  jurisdiclioc  f  For  the  King's-bench 


that  addition  proves  the 
the  Teste  of  the  King's-bench  is  '  coram  dom. 
'  rege,'  without  any  addition,  but  that  of  the 
Chancery,  '  coram  dom.  rege  in  CBQcellnria,' 


want  of  time,  for  I  am  much  drlighled  with 
ihete  things.  What,  may  not  tlie  Judges  med- 
dle with  any  thing  in  the  Forest?  If  that  were 
*o,  I  would  never  dwell  in  a  forest,  to  be  wholly 
nnder  the  iiirisdiction  of  the  wardens  aod  re- 
garderi.  These  glosses  and  interpretations 
are  very  strange  to  me,  and  others  vfho  have 
been  Judges.  My  lords,  all  those  Arguments 
offeied  unto  your  lordships  in  this  last  confi^- 
tence,  areof^adoublenature.  1.  Actsof  Par- 
liament. 3.  Judicial  Precedents.  For  the 
first,  1  hold  it  a  proper  argimient  fur  your  lord- 
(bips,  because  you,  rny  lords  temporal,  and  vou, 
ip; .lords  spiritual,  gavt  your  assent  unto  iQosc 


■ProcetdagsmPartiaiHaUfdatingto  [13S 
acta  of  parliament;  and  therefore  if  these  can- 

not  persuade  i|du,  notliiiig  can.  For  the  stc  md, 
which  are  judjciut  precedents,  it  is  '  Argumen- 
'  tum  ah  authorituce,'  EUid  '  Aiguoteutunt  ab 
'  BUlhoritate  ralet  affirmaiiife:'  that  is,,tcoD' 
ceive,  though  it  be  no  good  argument  to  say  ne- 
gatively, tlie  Judges  have  given  no  upinii^ti  in 
the  point,  er|v,  that  is  not  taw;  yet  affirma- 
tively iCconctudes  well;  the  Judged  have  deariy 
delivered  their  opinions  in  the  point,  erge,  it  ii 
good  law ;  which  I  fortily  witli  a  strong  niiom, 
'  Nenunem  oportet  sapientorunt  esse  Icgibus,' 
as  long  a9  these  laws  stand  unrepenUd.  Now, 
theiie  two  arguments  being  so  well  pressed  to 

J 'our  lordships  by  my  colleagues,  I  tliink  your 
urdshlps  may  wonder  wliat  my  part  may  be;  it 
isshort,  hut  sweet;  it  is  Ibe  reason  of  il  those 
laws  and  precedents,  and  reason  must  needs  be 
welcome  to  all  men  ;  for  all  nlen  are  not  capa- 
ble of  tile  uuderscandiiig  of  the  law,  but  every 
man  ig  capable  of  reason.  And  those  reasons 
I  offer  to  your  lordships,  iu  alhrmaiice  of  the 
aocient  laws  and  precedraits  made  liir  the  h> 
berty  of  the  subject,  against  iuipiisonment  nilb- 
out  cause  eipreased,  and  shall  ibaw  theni  in 
order  and  method,  to  confirm  the  same, 

.  2.  A  minori  ad  miijiu. 

3.  From  the  Remedies  provided. 

4.  From  the  eitent  and  univcrsalitj  of  th« 

i.  From  the  infinitenesi  of  the  time. 

6.  AJine. 

The  tirst  general  reason  is,  i  re  ipu,  even 
&om  tho  nature  of  imprisonment,  '  ex  viscrri- 
bus  CBuszj'  for.  I  will  speak  notliing  tmt  uif 
idtm,  be  it  close  or  other  imprisonment:  and 
this  Bigument  is  threefold,  beca)ise  an  impri- 
soned man  upon  will  and  pleasure  is, 

1.  A  Bondman. 

3.  Worse  than  a  Bondman. 

3.  Not  BO  much  M  a  man.;  for  '  moituDa 
'  homo  nan  est  homo,'  a  prisoner  b  a  dead 

1.  No  man  can  be  imprisoned  upon  will  and 
pleasure  of  any,  but  he  (hat  is  a  Bondman  aod 
Villein,  for  that  imprisonment  and  bondage  arc 
'  propria  quarto  modo'  to  villeins.*  Now 
'  propria  quarto  modo,'  and  the  species,  are 
convertible ;  whosoever  is  a  Bondman,  mav  - 
be  imprisoned  upon  will  and  pleasure,  antl 
whosoever  m^  be  imprisoned  upon  will  and 
pleasure  is  a  Bondman. 

3.  If  a  Freeoiat)  of  England  might  be  impri- 
soned at  the  will  and  pleasure  of  the  kii^  or 
hii  commandment,  tlien  were  they  in  worse 
case  ihaii  Bondmen  or  Villeins;  &r  Ihe  lord  of 
a  villein  cannot  command  another  to  imprison 
his  villein  without  cause,  as  of  disobedience,  or 
refiising  to  serve,  as  it  is  agreed  in  the  Year- 
books. And  here  he  said,  that  no  mati  should 
reprehend  any  thing  that  he  snid  out  of  tha 
Books  or  Records:  ho  said,  he  woidd  prove  a 
freeman  imprisonable  upon  command  or  plea- 
sure, without  cause  eipressed,  (o  be  ebsolntelj 

•  See  tlie  Writ  DeNalivohabendo. 


,Goo;;lc 


129) 


SPATE  TRIALS,  3  Charles  I.  im6.—th  Libcriy  qfthe  Subjtct. 


[ISO 


in  irarae  cnse  than  a  frllein ;  and  if  he  did  not 
make  Ihii  pLiin,  he  desired  ifaeir  lordships  not 
(o  bdierc  hi™  in  niiy  thing  else  :  and  then 
pTodnceii  two  Book-CBses,  7  E.  3,  fol.  SO,  in 
the  new  print,  348  old  print.  '  A  Prior  had 
'  commanded  nne  to  imprison  liis  Villein,  the 
'  JudjEei  we™  readj  to  bail  him  till  tlie  Prior 
'  e*Te  \,'a  reason,  that  he  refused  to  he  bailiff 
'  of  bis  mnnor  ;  and  that  sntisficil  the  Judges. 
■  »d  Ca^e,  33  Ed.  3,  tiile  Tresp.  953.   in  Fonj 


IS  of  n 


-ho  c 


■  mnnded  one  to  take  and  detain  hii  rillein, 
'  but  demanded  his  cause ;  he  gives  i[,  becBuse 
'  be  refused,  being  thereunto  required,  to  drive 
'  hu  cat[le.'  ■  Ergo,  Freemen  imprisoned,  with- 

■  leins,  that  minthave  a  cause  slieivii  iheni  why 
'  clieir  are  imprisoned.' 

'  3.  A  Freeman  imprisoned  nithout  cause, 
'  is  9o  te  from  being;  a  Bondtnan,  ihnt  he  is 
<  ant  so  much  B9  a  mnn,  boi  is  indeed  a  dead 

*  fDBD,  and  so  no  man :  imprisonment  is  ac- 
'  couDtrd  in  law  n  civil  denth,  '  perdit  domum, 

■  foniiliam,   vicinos,  pntrinm,'   and   is   to  live 

*  amtnigst  wretched  aod  wicked  men,  malefac- 
'  ton,  and  the  like.'  And  that  death  and  im- 
prisonment was  the  same,  he  proved  by  an  ar- 
Honirnt  at  rffetlit,  because  they  both  pitjdoce 
the  like  imtnediate  effects  ;  he  quoted  a  Book 
(or  Uii*:  if  a  man  be  ihrenlenid  to  be  killed, 
be  may  avoid  a  Feoflinent  of  Lands,  Gifts  of 
Goods,  &c.  3g  H.  1,  65,  &c.  so  it  i«  if  he  be 
threatened  to  be  imprisoned;  the  one  is  an 
cctaal,  the  other  Is  a  civil  deaths  And  this  is 
the  first  genera)  argument,  drawn  d  re  ipia, 
ftom  the  Netai^  of  Imprisonment,  Co   which 

*  res  ipsa  consilium  dedit.' 

Tbe  second  general  Season  be  took  also 
froiQ  his  Books  ;  for  he  said  he  bad  no  law, but 
nhat  by  great  pairvs  nod  industry  he  ieamt  at 
his  book  ;  for  at  ten  years  of  see,  he  had  no 
mon:  law  than  oiher  men  of  FikG  age  :  and 
this  second  Reason  is,  5  minori  ad  majut: ;  he 
takes  it  trom  Bractoii,  fol.  105,  '  Minima  pcena 
■  corporalis,  est  major  qualib£t  pecuniaria.' 

Bnt  the  kihg  himflelf  cannot  impose  a  Fine 
opon  any  man,  but  it  must  be  done  judicially  by 
his  Jud^,  '  per  justiciaries  in  curia,  non  per 
'  rcisetn  in  camera  ;'  and  so  it  hath  been  re- 
.  *^ved  by  nil 'the  Judges  of  England:  Ije 
quoted  3  R.  9,  fol.  11. 

Tbe  third  general  Reason  is  taken  Irom  the 
ntnuberaud  ditetsiiy  of  Remedies,  which  the 
lair*  give  against  tmprisnnnftnt,  vix. 
-    Brest  de  hoiaine  replegiando. 
De  odio  et  alia. 
De  HaUai  Corjitis. 
An  Appeal  of  Impniomacnt. 
Srevede  Jaaavr.aptioni. 

Two  of  these  are  antiquated,  but  the  Writ 
'  de  odio  et  atia'  is  revived,  for  that  was  given 
hy  the  Statute  of  Magna  Cfiarta,  e.^  36,  end 
Iherefnre  though  it  were  repealed  by  the  Sta- 
tute of  98  £.  3,  c.  9,  yet  it  is  revived  again  by 
the  Statute  4^  E.  8,  c.  1,  by  which  it  is  pro- 
tided,  that  all  Statutes  made  against  Ua^* 

VOL.  III. 


Charta  are  void.  Now  the  law  would  never 
have  given  so  many  Remedies,  if  the  Freeman 
uf  Englanii  might  hace  been  imprisoned  at  free 
will  and  pleasure. 

The  fourth  general  Reason  is  from  the  Ex- 
tent and  Universality  of  the  pretended  Power 
to  imprison  :  fur  it  stionld  extend  nut  only  to 
thecommimsof  this  realm,  and  their  posterities, 
bot  to  the  nobles  of  the  land,  and  their  pro- 
genies, to  the  bishops  and  clergy  of  the  realm,  , 
nud  their  successors.  And  he  gave  a  causa 
why  the  commons  came  to  their  lordships, 
'  Commune  pericutum  commune  requirit  hui- 
ilium,'  Nay,  it  reachelh  to  all  persons,  of  whiit 
condition,  or  sei,  c:r  age  soever ;  to  all  judges 
and  officers,  whose  atiepdance  is  necessary, 
^c.  without  exception  ;  and  therefore  an  im- 
prisonment of  Buch  an  extent,  without  reason. 

The  fifth  general  Reason  is  drawn  from  the 
Indeliniteiiess  of  Time;  the  pretended  power 
being  limited  to  no  time,  it  may  be  perpetual 
'    '  ig  li& ;  and  this  is  very  hard  :  '  '    ~ 


old  t 


allotie'd  for  his  coming  fortfi,  is  a  fiard 
case,  aa  any  man  would  think  that  had  been  so 
u^ied.  And  here  he  held  it  an  unreasonable 
thing,  that  a  mim  had  a  remedv  Tor  his  horse  or 
cattie,  if  detained,  and  none  for  his  body  thus 
iudelinilely  impriioned;  for  a  prison  without 
a  prefixed  time,  is  a  kind  of  hell. 

The  sixth  and  last  Argument  is  ifine  ;  anrt 
'  sapiens  incipit  k  fine,'  and  he  wished  he  had 
he^u  there  alio  1  and  this  argument  lie  made 
threefdid. 

Ahkonetto.  This  being  less  honoorable. 

Abvlili.   ■    Tbis-bein^  less  profitable. 

A  tuto.         This  impnsonnient  by  will  and 
pleasure,    being   very   dan- 

{erous  for  t)ie  king  and 
iogdom. 

1,  Ab  honesto.  It  would  be  no  honour  to  a 
king  or  kingdom,  to  be  a  king  of  bondmen  or 
slaves  ;  the  end  of  this  would  he  both  iedecu* 
et  demtium,  both  to  king  and  kingdoni,  that  ia 
former  times  hath  been  so  renowned. 

S.  Ab  ulili.  It  would  be  against  (he  prolit 
of  ibe  king  and  kingdom,  for  the  execution  of 
those  laws  before  remembered,  Magna  Charta, 
5  E.  3,  95  E.  3,  38  E.  3,  whereby  the  king  wa« 
inhibited  to  imprison  upon  pleasure  :  you  see 
(quoth  he)  that  this  was  velui  gttrrtta,  an  old 
question,  anc^now  brought  in  again,  after  seven 
iicts  of  parliament:  I  say,  the  execution  of  all 
these  laws  are  adjudged  in  pariiament  to  be 
for  the  common  profit  of  (he  king  and  people ; 
(and  he  quoted  the  Roll)  this  pretended  power 
being  against  the  profit  of  the  king,  can  be  no 
part  of  his  prerogative. — lie  was  pleased  to 
call  this  a  binding  reason,  and  to  say,  that  the 
wit  of  man  could  not  answer  it ;  indeed  the 
great  men  kept  this  Roll  from  being  printed, 
but  that  it  was  equivalent  in  force  to  the 
printed  Rolls. 

3.  A  IteasoD  i  iaio.  It  is  dangerous  to  tha 
king  for  two  respects  ;  1.  of  loai ;  8.  of  dec 


131]  STTATE  TKIALS,  S  Chables  I.  -[eas.—ProceeduigiiaParliaiiKnlrdatttisto  [1S3 

fuur  Bouk-cwel  aad  Authorities,  ill  in  ihe 
puint;  Baying,  tlitt  if  tlie  lenmed  couawt  o 
the  oUier  siile  could  produce  but  one  again: 


trojing  ihe  endeavoun  of  men.  First,  If  h«  . 
be  committed  withnuc  the  expressicm  of  the 
cBu&e,  ttiouj^  lie  escape,  albeit  in  trutb  it  were 
for  Irea'soD  or  felonj,  yet  tbia  eacnjie  is  neither 
felrjnji  nor  (reason ;  but  if  the  cauie  be  ex- 
pn.'ssed  fur  suspicion  of  treason  or  felony,  then 
lilt:  escape,  though  it  be  ianuceot,  i»  treason 
i/r  ^laoy.  [The  Act,  which  is  in  Laliii,  is, 
'  nisi  causa  pro  qua  captus,  et  impiisunat.  fult 
'  tulejudicium  requirnt,  si  de  ilia  pro  legem  et 
'  consuetudinem  terrse  tuisset  convictut.^  lie 
quoted  u  cniise  in  print  like  a  reaM>n  .of  the 
law,  not  like  '  reniitiitur'  at  the  rising  of  tlie 
court ;  for  there  the  prisoner  '  iroditur  in 
'  balliuQi  auod  brere  ri^is  nan  fuit  sulficiens 
'  cuusa;*  Ihe- king's  command.  lie  quoted 
iiiiother  fiimfius  cause;  the  comnoos  in  par- 
liament, incensed  aguiust  the  duke  of  Suffolk, 
desire  he  should  be  committed :  the  lords  end 
all  the  Jud-^,  whereof  those  great  worthies, 
Prescot  and  Fortescue,  were  two,  delivered  s 
flat  opinion,  that  he  ought  not  to  be  comuiilted 
without  an  especial  cunse.  He  que-itioneri  also 
the  name  and  etjmolocy  of  the  writ  in  question, 
'  Corpus  cum  causa  C  ego,  the  cause  must !« 
brought  beiiire  the  judge,  else  how  cnn  he  take 
notice  hereof  f 

Lastly,  he  pressed  a  place  in  ihe  Gospel, 
Acts  93.  last  ver>e,  ivhere  Festus  conceives  it 
an  absurd  and  unreasonable  thin^,  to  send  a 
prisoner  to  a  Itoman  emperor,  and  not  lo  wiite 
along  with  him  theCauseolledged  against  him  ; 
send  therefore  no  man  a  pritoner  without  bis 
Causes  along  with  him,  hacfac  ct  vices.  And 
that  was  tiie  first  reason,  A  tuto,  that  it  was 
not  sate  forthe  king,  in  regard  of  loss,  to  cnai- 
mit  nteo  without  a  caotc. 

Tlie  second  Season  is,  that  such  -commit- 
Dients  will  destroy  the  endeavours  of  all  men. 
Who  will  endeavour  to  employ  himself  in  any 
profession,  either  oF  war,  merchaiidixe,  or  of 
any  liberal  knowledge,  if  he  be  but  a  lenniit 
at  will  of  his  liberty  ?  For  no  tenant  at  will 
will  support  or  impiore  any  tbiug,  because  he 
bath  no  certain  estate  ;  Ergo,  lo  make  men 
tenants  M  will  of  flieir  librnies  destroys  all 
industry  and endouvours  whatsoever.  And  so 
Kuchfer  these  six  principal  Ueaions  :  lakeu, 

S.  A  miitori  ad  maju$. 
.    3,  A  rcmedUt. 

4.  From  the  Eilent  and  Universality. 

5.  From  the  Infioitenessof  the  Time. 
0.  AM- 

i  Honour.         * 
Profit. 
Security. 
Industry. 
These  were  his  Beasons. 
Here  he  made  another  Protestation,  That  if 
•  Remedy  had  been  eiven  in  ih);  Case,  tliey 
would   not    Save  meddled  therewitli    by   no 
means;  but  now  that  remedy  being  not  ob- 
tained In  ibe  King's-bench,    without  looking 
back  upon  any  thing  that  hath  been  done  or 
omitted,  tliey  desire  some  provision  fur  the  fu- 
luie  only.    And  here  be  tosk  oceauon  to  add 


the  Liberties,  so  patund  pertiuenl,  oh!  how 
they  C(iuld  hiig  and  cull  it !  16  lien.  6.  tit. 
UdoHtlrance  defait  83,  6y  the  n  hole  Court,  tb» 
king  in  bis  presence  uannot  conimaod  a  nuD 
to  he  arrested,  biit  nn  action  of  false  imprison- 
meut  lieth  against  bim  that  arresteth :  If  not 
Uie  kiug  in  hii  royal  presence,  then,  none  other* 
can  do  it.  ■  Non  sic  itur  ad  ostfn.'  1  Hen.  7, 
4.  llus»ey  reports  the  Opinion  of  Mai-khamy 
C.  Justice  10  Ed.  4,  that  he  crjuld  not  imprison 
by  word  uf  mouth;  and  the  reason,  because 
ihe  party  hath  no  Remedy ;  for  tlie  law  leaves 
every  man  a  remedy  of  causeless  imprisoimien^ 
lie  added,  tliut  Markhain  was  a  woitliy  Judge, 
ihou):h  he  fell  into  adversities  at  last  by  Uie 
lord  Kivers's  means.  Fortescue,  chap.  6. '  Prtk- 
'  prio  ore  iiuUus  regum  usus  est,'  to  imprisoD 
any  limn,  Uc.  4  Lhi.  Times  bleated  aud  re- 
nowned for  justice  and  religion,  in  Plowdcn, 
^35,  the  Common  Law  tiath  so  udoieasuted , 
tlie  kin(;'s  prerogative,  .as  he  cannot  prejudice 
any  man  in  his  inheriuoce;  and  the  greatest 
iiiberitnnce  a  man  hath,  is  the  Liberty  of  hii 
Persou,  for  all  others  nre  accessary  to  iL  For 
thus  he  quoted  (he  oniior  Cicero,  '  AJujor  ba- 

'  quaui  a  pajeotibus.' 

And  these  nre  the  Autlioritica  he  cited  ia 

Now  he  propounded  and  answered  two  01^ 
jections:  first,  in  point  oF  Stoic;  secondly^  in 
ttie  course  held  by  the  tlousc  of  Commouf. 

May  not  the  Privy  Council  commit,  without 
cause  ehcwcd,  in  no  matter  of  state-  where  se- 
crecy is  required?  Would  not  tliis  be  au  hin- 
drance to  his  majesty's  service  * 

It  cttn  be  no  prejudice  to  the  king  by  reason 
of  matter  of  State,  for  the  cause  must  be  of 
liiglier  or  lower  nature.  If  it  be  for  suspicion 
of  treason,  misprision  of  treason,  or  felony,  it 
may  he  by  general  words  coAiched ;  if  it  be 
for  any  other  thing  af  smaller  uBiur«,  M  Con- 
tempt, nnd  the  like,  tlie  particular  cause  must 
be  shewed,  and  no  '  individuum  veguni,'  or 
uiicert-nui  ciiuse  to  be  udinitted. 

Agaiu,  if  the  law-  he  so  clear  as  you  make  it, 
why  ueeds  the  Declai  utioo  aud  Remonstrance 
in  parliainent  \ 

tlie  Subject  hath  in  this  case  sued  For  Ue- 
meiJy  in  Kiiig's-bench  by  Habeas  Corpus,  and 
FoHnd  none;  theruFore  it  is  necessary  to  he 
cleared  in  parliament. 

And  here  ended  -bis  Discourse.  And  then 
he  made  a  Recapitulation  of  all  that  bad  becji 
offered  unto  tlieir  lordships,  tliat  generally  tlieir 
lordshiijs  had  been  advised  by  the  most  taithfol 
counsellors  tbal  can  be;  dead  men,  these  can- 
not be  daunted  by  fear,  oor  mblnl  by  affec- 
tion, reward,  or  hope  of  preferment,  and  ibere- 
forc  your  lordships  might  safely  believe  them : 
particularly  their  lordships  had  three  several 
kinds  of  Proofs. 

1.  Acts  oF  Parliament,  judicial  Precedents, 
good  Beasoni.    First,  Tou  have  hod  many  an- 


!33]         STATE  TRIALS,  3  Charles  I. 

cwni  Beta  of-pnTlintneiitjn  the  point,  bearded 
]d^>  Cliana;  ihat  ii,  seven  acti  of  jwrlia- 
nent,  wliicli  indeed  nre  thirtj'-seren,  AlagiiH 
Ctnnn  bein*  coiitinne't  thirty  times,  for  su 
tCwD  fasTe  ihr  kings  of  Englaud  given  tlieir 
mfd  usent  theretu. 

8.  Judicial  l^cedeniiof  pravc  and  reverend 
Judges,  In  Irrmijii)  ierminanliliai,  tliaC  luiig 
•ince  departed  the  world,  and  cliey.  were  mnny 
ig  numiler.  Precedents  being  twelve,  find  the 
Jadges  fuur  of  :l  Bench,  made  four  times  twelve, 
lod  that  i)  forty- eight  Judges. 

9.  You  have,  oi   be  termed  then),  vividar 


ihipt,  that  ibej  of  the  House  of  CoTnmons  hare, 
Dpon  great  Kady  nnd  serious  cnnsideration, 
made  ■  great  manifeataticm  unnniinouiily,  nulla 
QMfradieeiiK,  concerning  tfaii  gieat  Liberty  of 
the  Sabject,  and  hare  vindicated  and  recQvared 
the  boiij  of  this  fDQdamciilnl  Liberty,  both  of 
Uxir  lord^ips  and  tbcmselves,  from  shadows, 

•  vhidi  sofhetnnes  of  the  day  are  long,  sometimes 
■liott,and  sometimes  loni;  Bgain;  and  therefore 

.  *i  must  not  be  gaided  by  sbfidows :  and  they 
bare  transmitted  to  their  lordships,  not  capita 
rrrMi,  Heads  or  Briefs,  tor  these  compendia 
ttt  dupendia ;  but  the  Records  at  large,  in 
UndnU  ttnai»ai\libuf.  And  so  he  concluded,' 
lliu  their  lordships  tve  involved  in  the  same 
duger,  and  therefore  'excongruoetcondigno,' 
diCT  desired  *  Conference,  to  thp  end  tlietr 
Wthjps  might  make  I  he  like  Declaration  as 
ihej  had  done ;  '  Commune  pericolum  requint 
'  coonnuneauiilium;'  nAd  thereupon  take  such 
fiuther  course  at  loaj  secure  th«r  lordships 
and  them,  and  all  ibar  posteritv,  in  enjoyiog 
>f  ttieir  ancient,  undoubted,  ana  fiindamental 
Liberties. 

IlMSubMaiiceof  theOiUECTJOHSiDadeby  Mr. 
Attomey'Ceneral  (Sir  Robert  Heaib]  be- 
San  »  Conuuittee  of  both  Houses,  to  the 
AiGDUEHi  that  was  made  by  the  liouse  of 
CoaiaiODi,  at  the  first  Conference '  with  the 

Arrift  the  firat  Conference,  which  wm  de- 
nred  by  the  L^rds,  and  had  by  a  Committee  of 
bMh  HoDws  in  the  Fainted  Chnmber,  touching 
the  Heasoni,  Laws,  Acu  of  Parliament,  and 
Precedei|t«  concerning  the  Liberty  of  tlie  Per- 
)0D  of  (Very  Freeman;  Mr.  Atlorney-Genernl 
Uiag  beard  before  ibe  Committee  of  both 
Uonies,  *g  it  wai  anented  to  by  th^ -house  of 
oiiiunoas,  that  he  aigbt  be,  belbre  they  went 
■p  la  the  Conference  ;  after  some  preamble 
■>Mle,  wherein  he  declined  the  answering  all 
Reaiom  of  Lnw,  and  Acts  of  Parlbment, 
CUM  ont^  to  ^e  Prei^dents  used  in  the  Argu- 
Beoc  before  delivered ;  and  so  endeavoured  to 
*caken  the  strength  of  them,  that  had  been 
brought  in  behalf  of  the  subjects,  and  to  shew 
il>t  same  other  were  directly  cnnirnry  to  the 
l>*i  comprehended  in  the  resolutions  of  the 
kme  of  commons,  toaclunK  the  bailins  of  uri- 


iclunKthe  bailing  of  pri- 
MMn,  returned  upon  the  Writ  of  Habeas  Cor- 
|v  tg  be  cooiDUtted  by  tha  ipacial  coDuuuid 


1028.— f&!  Liberlfi  <^lhe  Saiject.  [134 

of  the  king,  or  the  council,  without  any  cause 
shewed,  fur  which  by  law  they  ought  tii  be 
coromitted.  Aud  the  course  which  nas  tnten 
(it  plensed  the  Committee  of  bolb  ~liouseb  lo 
allow  of  j  was,  that  Mr.  Attorney  should  jnake 
bis  Objections  to  every  particumr  Precedent, 
nnd  that  the  Gentlemen  appointed,  ami  trusted 
herein  by  the  house  of  ci>mmons,  by  scveralre- 
plies  thould  satis^  the  lords  touching  the  Ob- 
jections mode  by  him,  Hiiaiost,  or  vjxm  etery 
[inrticular,a3the  order  of  tlie  Precede Dti  iliculd 
ead  ihem.  He  b^an  with  the  first  twelve 
Precedents  ihnt  we?e  used  by  the  House  of 
Commons  at  [ho  Conference  desired  by  them, 
10  prove  that  prisoner*  returned  to  stand  so 
committed,  were  delivered  itpon  hail  by  the 
Court  of  King's-Bench. 

The  fint  was  that  of  Bildeaton's  Case,  in  the 
18  lEdw.  3,  Rot.  33. 

To  this  he  ob'iected ;  first,  thnt  in  the  reiom 
of  him  into  the  Court,  it  did  not  i^ipeur,  tliat 
this  Bildeston  was  coiiiraiited  by  tlie  kiug's 
command;  and  secondly,  thui  in  ihe  Record 
it  did  appear  also  that  he  had  been  comoiitteil 
for  suspicion  of  counlei/eiting  the  great  seal, 
and  so  by  consequence  was  bailable  by  tjielaw, 
in  regard  there  appeared  a  cause  wliy  he  was 
committed  :  in  which  case  it  wag  granted  by 
him  (as  indeed  it  was  plain  and  agreed  of  all 
hands)  that  the  prisoner  is  bailable,  thouth 
committed  by  command  of  the  king.  Aud  he 
said  that  this  part  of  the  Record,  by  which  it 
appeared  he  had  been  cnnmiitted  for  stispicioD 
of  Treason,  was  not  ob»erved  to  the  lords  in 
the  Argument  before  used ;  and  be  shewed 
also  to  the  lords,  fliat  there  were  three  several 
kinds  of  Records,  by  which  the  full  truth  lof 
every  award,  or  bailing  upon  nn  Habeas  Cor- 
pus IS  known.  Firat,  the  Rem einbra ace-Roll, 
wherein  the  award  is  p^ven ;  secondly,  the  File 
of  the  Writ  and  the  Return ;  and  thirdly,  ihs 
Scrtiet-Rnll  or  Scruetjinium,  wherein  the  bail 
is  entered,  and  that  only  t^e  Ilemembrmnce- 
RdII  of  this  case  was  to  be  found :  and  that  if 
the  other  two  of  it  were  eitant,  he  doubted 
iiot  but  that  it  would  appear  also,  that  upon 
the  return  iuelf  the  cause  nf  the  commitment 
had  been  expressed.  And  so  he  concluded, 
that  this  proved  not  for  the  Rosotntion'of  the 
house  of^  commons,  touching  the  mnller  of 
bail,  where  n  prisoner  wna  committed  by  tho 
king's  speciol  coininnnd  without  cause  shewed. 

To  these  Objections  the  r»ply  was.  First, 
that  it  was  plain  that  Bildeston  was  committed 
by  the  ting's  express  command.  For  so  tho 
very  words  of  the  Writ  are  to  the  Constable  of 
the  Tower,  '  quod  eum  teneri  et  custodiri  fa- 
'  ciss,"  fltc.  than  which  noiliiiiR  can  more  fully 
eipress  ■  commitment  by  the  king'i  cimmand. 
Secondly,  however  it  be 'true,  that  in  the  laiter" 
part  of  tlie  Record  il  doth  appear,  that  Bil- 
deston had  been  committed  for  suspicion  of 
Treason,  yet  if  the  times  of  the  proceeding,  ex- 
pressed ill  the  Record,  were  nbserved,  it  would 
he  plain  that  tlie  objection  was  of  nu  force ; 
for  this  one  ground,  both  in  this  case  and  in  all 
the  rett,  ii  in&llible,  ind  never  to  be  doubted 


135]  STATE  TRIALS,  3  Chablks  L  \e2S.—ProceedmgtinPaTluaneHtnlaiinsie  [18^ 


of  in  the  Taw,  That  Justices  of  ever;  coart  ad- 
ju((|(e  of  ihe  force  and  slieiigth  of  a  return  out 
of  ihe  body  of  itself  only,  and  ai  tlierein  it  np- 
iieon.  Now  in  Easter  term  in  tlie  IQ  Ed.  3, 
lie  waa  retumed  and  brought  before  ibeiu,  as 
committed  only  by  the  Writ ;  wlierein  no  cuue 
h  eipreMed,  and  the  IJeutiDiuit  nnd  the  Con- 
Kiable  of  tlie  lower,  ilint  brougbt  biin  into  tin 
court.  Bays,  Tliat  be  bud  no  other  warrant  to 
detain  huu  '  nisi  breve  predictum,'  >  wherein 
tlieie  was  no  mantidn  of  way  Cause  ;  and  the 
Court  tbereupuii  adjudged,  that  '  breve  pre- 
*  diciuni,'  or  that  special  command,  was  not 
sulHcient  cause  to  detain  hiia  in  prison,  and 
thereupon  be  is  by  judgment  of  toe  court  in 
Easter  Term  let  to  Mainprise.  But  that  part 
of  the  Record  wherein  it  nppcars,  that  be  bad 
iudeed  betn  cotumitted  for  suspicion  of  Trea- 
Bon,  is  of  Triniiy  Term  tiillou'iog,  when  the 
kiii^  after  the  lettii^  of  bim  to  Mainprise,  tent 
to  ibe  Judges  that  they  should  discharge  his 
.Mainprise,  because  no  man  prosecuted  bim. 
And  at  that  time  it  apptars  (but  not  before) 
tliut  lie  liiid  been  in  for  suspicion  of  Treason  ; 
so  that  he  was  returned  to  stand  committed  by 
the  liing's  suecint  command  only,  without 
cause  sbenen,  in  Easter  Term,  aud  then  by 
jutlgment  of  the  court  let  to  Mainprise,  (which 
to  this  purpose  is  but  tbu  same  with  Bail, 
tho'ugh  otherwise  it  diller).  And  in  the  Term 
following  upon  another  occasion  the  court 
knew,  tiiat  he  had  been  cnmoiilteil  for  suspicion 
of  Treason,  w'hich  has  no  relaiion  at  all  to  the 
ietiini  of  hint  to  Mainprise,  nor  to  the  judg- 
ment of  (be  court  tbeu  given ;  when  they  did 
llul,  nor  could  possibly  know  any  cause  for 
nhicb  the  king  bad  commitied  him.  And  it 
Was  said,  iu  behalf  of  the  house  of  commons, 
thnt  they  had  not  indeed  in  their  Argument 
e^ipressly  used  this  latter  part  of  the  Record  of 
Bildestun's  Case,  because  it  being  only  of  Tri- 
nity Terra  fallowing,  could  not  concern  tbe 
reason  of  an  award  given  by  the  court  in  Easter 
Term  next  before;  vet  notwiltutanding  that 
they  had  most  faitlifnily,  at  the  time  of  their 
Argument,  delivered  in  to  the  lords,  as  indeed 
they  had,  a  perfect  copy  at  large  of  the  whole 
Record  of  this  cote ;  as  they  had  done  also  of 
all  other  precedents  whatsoever  cited  by  them ; 
insomuch  as  in  irutli  there  was  not  one  prece- 
dent of  Uecont  on  either  side,  the  copy  where- 
of ihej  had  not  delivered  io  likewise,  nor  did 
Mr.  Attorney  mention  any  one  betides  those 
that  were  so  delivered  in  by  them.  And  as 
toucliiug  those  three  kinds  of  Records,  (he  Re- 
metnbrance-Uoll,  the  Return  and  File  of  (be 
'Wrii,an'dScruetsi  it  was  answered  by  the  Geu- 
tlemen  employed  by  tbehouseof  commons,  tbu 
it  WHS  true,  timt  the  Scruet  and  the  Return  of 
this  cnsf  of  Bildeston  was  not  to  be  found ; 
but  that  did  nut  lessen  the  weight  of  tbe  pre- 
cedent, because  alwayt  in  the  award  or  judg- 
ment drawn  up  In  the  Remembrance-RoU,  the 
'caote  (wiiatsoever  it  he)  when  any  is  shewed, 
upon  the  return  is  always  expressed,  as  it  ap- 

E^ars  dearly  by  the  constant  entries  of  the 
io^VBencn  cuuit.    S«  that  if  any  cause  had' 


appeared  unto  the  coart,  it  most  have  appeared 
plainly  in  that  part  of  the  Roll  which  belangi 
to  Easter  Term,  wherein  the  judginent  was 
given  :  but  tbe  tetum  of  the  coniniitment  by 
(he  king's  eomuiand  wiltuiut  cause  shewed, 
and  the  Judgment  of  the  court,  that  tbe  pri- 
sons liaa  to  be.  Jet  to  mainprise,  appears  there- 
in only.  And  so,  untwitlislaudiog  tiny  ol^eo 
tion  made  by  Mr.  Attorney,  the  cause  wis 
mninlained  to  be  a  clear  proof,  among  many 
others,  touching  thnt  Resolution  of  the  boiMC 


To  tbe  second   of  these   tweUe,   which  is 
Parker's  Case,  iu  the  32  H.  8.  Rot  37,  his  ob- 
jections were  two;  1,  that  it  is  true,  i bat  he 
rettiroed  to  be  committed  '  per  maiHtatuu 


by  one  itiibert  Peck  gentleman;  and  that  in 
rcgarct  tb,it  tbe  command  came  no  othcfnise, 
tbe  return  was  held  insuBcieoi,  and  that  there- 
fore  he  was  bailed.  3.  That  it  appears  also  in 
the  Record  that  he  was  committed  '  pro  sul- 
'  picione  felonin  ac  per  mandatum  domini 
'  regis :'  SO  that  in  regard  that  (he  eipressisn 
of  the  cause  of  his  copHnitment,  lu&piciau  rf 
felouy,  precetie*  tbe  command  of  the  king, 
therefore  it  must  be  intended  that  'the  court 
took  the  cause  why  tbe  Ving  committtd  him  to 
be  of  less  ifiotnent  than  felony,  and  ibercfore 
bailed  him.  For  be  objected,  iliat  even  the 
bouse  of  commons  itbeinselves,  in  somean^ 
men(s  used  by  them,  touching  the  interpreta- 
tion of  tbe  Statute  of  Westminster  ibe  &rst, 
cap.  15,  about  this  point,  had  aSirmed,  tbst  in 
enumeration  of  particulars,  those  of  grcaieM 
nature  were  fint  mentioned,  and  that  it  wis 
supposed,  that  floch  as  followed  were  usually  o( 

But  the  reply  was  to  tbe  first  Objection, 
That  the  addiuon  of  tbe  certifying  of  the  king's 
command  by  Robert  Peck,  altered  not  the  esse: 
1,  because  the  sheriffs  in  their  return,  took 
notice  of  the  command  as  wlwt  they  were  as- 
sured of:  nnd  howsoever  it  came  to  them,  it 
was  of  equal  force,  as  if  it  bad  been  mention- 
ed without  reference  to  Peck.  3,  As  divets 
Patents  pau  tbe  great  seal  by  writ  of  priry- 
sesl,  and'  are  subscribed  '  per  breve  de  private 
'  sigillo ;'  BO  divers  '  per  ipsum  r^eoi,'  are  so 
sutecribed ;  and  oftentimes  in  the  Roll  of 
formertimes,  to  the  words  '  per  ipsnm  regem,' 
B.'     So  that  the 


maud  related  or  certified  by  su 
this  purpose  of  like  nature.  3,  In  the  late 
great  csSe  of  Habeas  Corpus,  whien;  ib«  rettun 
of  tbe  commitment  was  '  per  speciale  mando- 
'  turn  domini  regis  uiihi  siguincatum  per  do- 
'  minntdeprivatoconcilio;'  tbe  tt>urt  of  King's- 
Beach  did  a^pree,  that  it  was  the  same,  and  of 
like  force  as  if  ■  mibi  sigoificatam,  &c.,  had  not 
followed,  and  that  ibose  words  were  vdtd.  Ao- 
carding  wbereunto,  here  also  ■  per  roaMUtom 
'  dom.  rqis  nundatum  per  Robert  Peck,'  had 
been  wholly  omitted  and  void  likewise.  And 
in  truth  in  that  iaie  case,  this  Caw  of  PHket 


187]  ^ATE  TRTAl^,  3  Chabus  L  162.S.-wA«  Uberty  (fikt  Su^i. 

wu  cited  bath  it  the  bar  and  bench  j  aedtt 
tin  bench  it  wu  intcrprelcd  by  the  Judges  nu 
atliernise,  ihau  if  it  had  been  ouiy  '  per  inaii- 
■  datum  domini  ic^is'  in  place  of  it :  but  the 
objectJoD  there  iras  made  at  another  liind,  u 
n«s  delivered  in  ttie  Rnl  Argument,  made  out 
of  Precedeut)  in  behalf  uf  ihe  linuse  of  com- 
mons. Therefore  to  the  tecand  objectiou, 
toutJiingthe contM  ofenumerntiouuf  (be  cause* 
in  the  Betuni,  it  waa  laid,  that  howsoever  hi 
tome  acts  of  ]iariiameut,  sad  ebenhere  in  the 
Mtieipi)  eipresiiuni  used  in  Che  law,  cblagi  uf 
greater  nature  preceded,  and  tlm  leu  follow  ; 
Tet  in  this  case,  the  cooirarj  was  moit  plaia, 
fur  in  the  Hetum  it  appcart,  ihat  there  were 
three  caoieifordetainiiig  tbeprisoners  i  Surety 
of  ihe  peace,  dupidoo  of  felony,  and  ihe  king^ 
command:  and  auitty  of  the  peace  ia  £nt 
meniioned,  which  ii  plainly  leu  than  felouj. 
And  therefore  it  ii  plain,  if  any  tbrce  of  ail- 
ment be  taken  fiom  itus  enumeraiioa,  that  the 
cotUTBry  to  that  which  Mr.  AttonlBy  interred  it 
to  be  coochided  :  that  is,  ibaC  at  felony  is  a 
(icaur  cause  than  surety  of  the  peace,  so  the 
Mattel  (thereupon  tbe  king's  command  was 
fnMmded,  ma  uraatrr  than  felony.  Bat  in 
truth  this  kind  of  argument  holds  neither  way 
here,  awl  whatioeTer  the  cause  were,  why  the 
king  comiiHitcd  bim,  it  waa  impossible  for  the 
court  lo  konw  it :  and  it  also  might  b«  of  very 
high  moment  in  matter  of  state,  and  yet  of  &r 
less  nature  than  felony.  All  which  shews,  that 
this  precedent  bath  its  fall  force  alwi  according 
M  it  was  first  used  in  argumeot  by  the  house  (^ 


To  the  third  of  these,  which  is  Binck'*  case 
ID  the  35  U.  8.ilo(.  33,  tbe  objection  was,  that 
tbe«  was  a  cause  eipreiied  '  pro  luipicioue 
'  feloni« :'  and  though  '  pm  ajiis  oauiis  illus 
'  mowaoiibus*  were  added  in  the  return,  yet  be- 
cause in  the  course  of  enumeration,  tbe  general 
name  otaiiit  coraiog  after  particulars,  iodudes 
tbiup  of  less  nature  than  tbe  pnrticuUr  doth, 
therefore  in  this  case  suspicioii  of  felony  being 
tjw  fint,  the  other  cause*  afterwards  geserally 
mentioned  mi|st  be  intended  of  lets  nature,  for 
which  the  pnsoner  wat  bailable,  becoiMe  be 
aas  bailable  (nr  the  grsnter,  which  was  lut- 
picii)n  of  felauy.  Hereunto  it  *as  replied,  that 
ibe  arguraeot  of  enumantion  in  ihese  cote*  is 
of  no  ntomait,  as  it  next  before  shewed :-  and 
that  although  it  were  of  auy  moment,  yet  aiia 
Kaw«y  though  test  than  fpbjity,  rni|{lit  be  of 
veiygrcatcoDsequeDce  in  matter  uf  state,  which 
it  pieuaded  usually  upon  genn^  returat  of 
couaaand,  without  cerise  shewed;  and  it  is 
most  plain,  thal^  tbe  court  oould  not  possibly 
know  the  TCMona,  why  tbe  prisoner  here  was 
ocxmiiittad,  and  yet  they  bailed  him,  without 
loohing  fivthtr  after  any  unknown  thing  under 
that  title  of  matter  of  state,  which  might  as  mii 
knjt,  bqrn  in  tfiis  case  at  in  any  other  whaCeo- 

To  tiie  fourth  of  these,  which  is  Orerton's 
Cat^  in  Pateh.  9.  et  S.  Phil,  et  Mar.  Rot.  5B. 
And  lo  the  fifUi,  wbicfa  is  Newport^*  C«ie, 
PMck.  Phil.  «t  IIAiw.  4  et  £  Rot.  46,  on^  theae 


[ISS 

objections  were  said  over  again  by  Ht.  Attor- 
ney, which  are  mentioned  in  the  Argument 
made  oui  of  tbe  PreceJents  in  behalf  of  the 
house  of  commons  at  the  first  conference  :  and 
iu  the  same  arguoitnt  are  fully  and  clearly 
saUffied,  as  they  were  in  like  manner  now  again, 

Tu  the  tilth  of  these,  which  was  Lawrence's 
Case,  S  Elli.  liol.  35,  and  the  seventh,  which 
is  Constable's,  Pasch.  9  Eliz.  Rot.  08,  the  sane 
objeciions  were  likewise  said  over  again  by  Mr. 
Attorney,  that  are  mentioned,  and  are  dearly 
and  fully  aaswered  in  th^  argomenl  made  at 
ihe  conference  out  of  precedenu  in  behalf  of 
tbe  Itouse  of  commons ;  tlie  force  of  the  objec- 
tion being  oiJy,  chat  it  appeared  in  the  margin 
of  the  Roll,  chat  ihe\«onI  Pardon  was  written : 
but  it  i)  plain  that  (he  word  there  hath  no  re< 
ference  at  all  to  (be  reason  wiiy  they  were 
bailed,  nor  could  it  have  reference  lo  the  cause 
why  they  were  comroitled,  in  regard  the  cause 
why  they  were  c<HDmilted  is  ullerl;  unknown, 
and  .»n«  not  shewed. 

1'p  the  elghtli  of  these  Precedents,  which  wka 
Browning's  Case,  Pasch.  SO  Eliz.  Rot,  73.  it 
was  said  by  Mr.  Attorney,  that  he  was  bailed 
by  a  letter  from  the  Lords  of  the  Council,  di- 
rected CO  the  Judges  of  tbe  Court ;  but  bong 
asked  for  (hat  le(ter,  or  any  testimony  of  it,  he 
cotthl  produce  none  ac  sU ;  but  said,  be  thowf  bl 
the  testiiDouy  of  it  wat  burnt,  among  many 
other  tiling  of  the  Council- table,  b1  the  burn- 
ingof  the  Baouu  eting-Uonsc, 

To  the  0lh,  beiug  Harecoort's  Case,  Pasch. 
40  Elu.  RuL  69,  tbe  telf  same  objection  wat 
made  by  him,  but  no  warrant  was  sbtwed  tu 
maintain  bis  Direction. 

To  the  10th,  n-bich  is  Catetbv't  Cate,  in  so- 
cetimc  UUl.  43  Eliz.  he  said,  That  it  was  by 
'  direction  of  a  privy-seal  from  the  queen :  and 
to  that  purpoie  be  shewed  the  privy-seal  of  4S 
EJiz.  which  is  at  large  among  the  transcripts  of 
tlie  Recordt  concerning  boils  taken  is  cases, 
where  the  king  or  the  lords  awented.  But  it 
was  replied,  I'hat  die  piivy-eeal  wat  made  only 
for  some  particular  gentlemen  mentioned  la  it, 
and  ibr  none  other,  as  indeed  appears  in  it: 
nnd  then  he  said,  thai  it  whs  likely  that  Catrt- 
by  here  bad  a  privy-teal  in  this  behalf,  because- 
those  other  had  so :   which  was  all  the  force  of 

To  the  Itth  of  these,  which  is  Beckwith'* 
Case  in  Hill.  19  Jac.  Rot.  153,  be  said,  that  . 
the  lords  of  the  council  sent  a  l^ler  to  ihe 
court  of  King's-BeQch  to  bail  him.  And  indeeA 
be  produced  a  letter,  whicfi  could  not  by  any 
toeao*  be  toand  what  tbe  arguments  were 
made  at  the  Rnt  conferencei  and  lliis  letter, 
and  a  copy,  of  an  obscure  report  made  by  « 
young  student  (which  was  brought  to  onotho- 
purpoae,  at  is  hereafter  shewed),  were  (he- 
only  diings  written  of  any  kind  that  Mr.  Attor- 
ney produced,  beside*  the  particulars  shewed 
by  tbe  bouse  of  commons  at  the  first  conler- 
enco.  To  this  it  was  replied.  That  tbe  latter 
wiaa  of  DO  momeni,  being  only  a  direction  to 
the  Chief-Justice,  and  no  matter  of  Record, 
nor  tay  WSJ  cooceming  tbe  rett  of  tbe  Judge*  : 


139]  STATE  TRIAU,  3  Chaxle*  I.   l03S.~Prvaedmp  m  IWioMnt  rtlaAig  to  [140 


■nd  besidca,  either  the  prisoner  nns  bBJlitble 
hy  the  law,  or  not  bailable.;  if  bailable 
bj  the  law,  then  ha  wa<  to  be  hailed  nitb', 
out  nay  such  letter ;  if  not  bailable  by  the  Ian, 
then  puiiily  the  Judgeii  conld  not  have  bailed 
•  hiiD  upon  t^e  letter,  without  breach  of  tbeir 
oath,  which  is, '  That  they  are  Co  do  juKice  ac- 
*  coi(lin)>  to  the  law,  tviihont  having  respect  lo 
.  '  a"5<^<iDl0lind  wbataocTer.'  So  tliat  the  letter 
in  this  case,  or  the  like  in  any  other  case,  it  for 
point  of  Uw  u>  no  purpose,  nor  hath  any  weight 
at  all  by  way  of  ob)ection  agninst  what  the 
Itecord  and  the  Judetnent  ofthe  court  shew  us. 

Tu  the  ISth  and  last  of  these,  which  is  sir 
Thomai  Monson's  Case  in  the  14  Jac.  Hot. 
14T,  the  same  objection  ofily  was  said  over  hy 
him,  which  was  mentioned  and  clearly  answer- 
ed in  the  argument ;  and  that  one  ground  which 
is  infaUihle, '  That  the  judgment  upon  a  return 
'  is  to  be  made  oniy  out  ofwhat  appears  in  the 
'  body  of  the  return  itself,'  was  ^ain  insisted 
upon  in  this  case,  as  it  was  alio  in  most  of  the 
rest.  And  indeed  that  alone  which  is  must 
dear  law.  Fully  satisfies  almost  all  tind  of  ob- 
jections [hat  have  been  made  to  nny  of  these 
precedents;  which  thus  rightly  understood,  are 
many  ample  testiinonie*  of  the  Judgment  of 
tbe  Court  of  KingVBcnch,  touching  this  i^eat 
point,  in  tbe  several  ages,  and  rei<;ns  of  the  se- 
veral princes  under  wMch  they  fall. 

Afler  his  Objections  to  the  twelve,  and  tbe 
replies  and  satisfactions  given  to  these  objec- 
tions, he  came  next  to  those  wherein  tlie  as- 
sent of  ibe  king  and  privy-council  appears  to 
have  been  upon  the  eolaigeriient :  but  he  made 
not  to  an}!  of  these  any  other  kind  of  ohjeciians 
whatsoever,  than  suco  as  are  mentioned  and 
clearly  answered,  as  they  ware  now  aoain,  in 
tbe  Argument  made  at  the  first  Conference. 
And  for  so  much  as  concerns  letters  of  assent 
or  direction,  the  snme  was  here  said  again  by 
way  of  reply  to  liim,  as  ia  hefhre  said  touching 
the  latter  in  Beckwith's  Case. 

After  theje  were  dispatched,  he  came  to 
ui^e  the  eight  Precedents,  which  seemed  to 
make  fVir  the  other  side  gainst  tbe  Resolutioa 
of  tlie  house  of  cnmmons :  which  eight  were 
nsed,  and  copiMoftbem  aho  were^ven  intothe 
lords  at  the  arit  Conference. 

Of  these  eight,  the  first  four  were  ur^ed  by 
him,  as  being  of  one  kind  ;  the  difierence  of 
.  thtm  only  being  such,  that,  save  only  in  the 
names  of  prisons  and  of  persons,  tbey  ar«  but 
the  self- same. 

To  the  fbrce  of  these  fbor  be  objected  thus ; 
that  Richard  Everard,  for  the  pnrpoie,  in  the 
first  of  them,  which  is  S  U.  7,  Rot.  18.  Roger 
Cherry  In  the  second  of  them,  which  is  8  H.  7. 
Rot.  13,  Christ.  Burton,  in  the  third  of  them, 
which  is  9  H.  7,  Rot.  14,  and  George  Unewirl^ 
in  the  fourth  of  them,  which  is  19  H.  7,  Rot. 
13,  yitte  returned  into  the  Kiilg's-Bench  upon 
several  nrits  of  Habeas  Corpus,  to  have  been 
committed  and  detained  in  the  several  prisons 
whence  they  tame  '  per  mandatum  domini 
'  r^ls,'  and  that  upon  that  Houra  they  were 
•ommitted  to  ilw  manhal  of  th*  King's-Beocb ; 


and  that  however  it  had  been  objected  against 
those  precedents,  tbat  this  kiud  of  commitment 
was  by  the  course  of  that  cotirt  always  done 
betbra  the  baiting  of  the  prisoner,  yet,  that  it 
did  not  appear  that  they  were  bailed. 

The  Reply  to  this  objection  was.  That  by 
constant  course,  of  King^s-Bench,  whosoever 
came  in  upon  Habeas  Corpus,  or  otherwise 
upon  any  writ  in  that  court,  cannot  be  bailed 
until  he  be  first  cotnmitted  to  tbe  marshal  of 
that  court;  and  that  tbence  Itwas,  tbat  all  those 
four  were  committed  to  the  marshal,  as  appeir« 
by  the  entry,  '  Qui  committitar  Marescallo, 
'  &c.'  which  is  the  usual  entry  in  such  a  case, 
and  that  the  clerks  of  that  court  acknowledge 
this  course  and  entry  to  be  most  constant.  So 
that  ail  the  inference,  that  can  be  made  oat  of 
these  four,  is,  thst  fonr  prisoners  being  brought 
from  four  several  prisons  by  Habeas  Corpus 
into  the  King's-Bencb,  and  returned  to  stand 
committed  '  pur  mandatum  domini  r^is,'  were 
to  far  from  being  remanded  by  the  law,  that  in 
nil  these  four  cases,  tbey  were  first  token  fnta 
tbe  sereraj  prisnns,  wherein  they  had  been  de- 
tained, by  such  a  general  command  (whkh 
could  nut  have  been  if  they  had  not  been  «d- 
judf>ed  in  every  one  of  tbe  casei  to  have  beoi 
bailable  by  the  conrt),  and  that  this  commit- 
ment of  tbtra  to  the  marshal  of  the  KingV 
Beach,  was  tbe  first  step  towards  the  bailing  oT 
them,  as  in  all  other  cases.  But  that  it  ap- 
pears not,  that  either  tbey  ever  demanded  to 
be  bailed,  or  that  they  were  able  to  find  suffi- 
cient bail ;  and  if  they  did  not  the  one,  or  could 
not  do  tbe  other,  it  mav  follow  indeed  that 
they  were  not  bailed.  But  this  commitment 
to  the  king's-Bencb  being  the  fir«i  step  to  tbr 
bailing  of  Uicm,  as  by  the  constant  course  it  ia, 
shews  most  pls^y  that  they  *tte  bailable  by 
the  law,  winch  is  tbe  only  thing  in  question. 
So  tbat  although  these  fonr  precedents  vrere' 
ranked  among  them,  that  may  seem  to  make 
against  the  Resolution  of  the  house  of  coimuons, 
which  was  done,  both  because  thejr  have  tliis 
smalt  colour  in  them  for  the  other  side,  to  any 
man  that  is  not  acquainted  with  the  nature  nnil' 
reasons  of  the  Entries,  and  coutsesoftbe  court 
of  Klng's-Bench,  and  also  because  all  or  some 
of  diem  had  been  used  in  the  late  great  case 
in  the  KiogVBench,  as  precedents  that  made 
against  the  liberty  claimed  by  the  subject ;  vet, 
in  truth,  all  four  of  them  do  fully  prove  iheir 
Resolution  ;  tbat  is,  the^  plainly  shew  tliat  the 
ci>uit  of  King's-Beoch  m  every  one  of  ihem 
resolved,  that  the  prisonets  so  committed  wer* 
bailable,  otherwise  ihey  had  been  semanded, 
and  not  committed  to  the  marshal  of  tbtt 
KingVBendi.  And  this  was  the  Answer  tn 
tbe  Objection  made  by  Mr.  Attorney  upon 
those  four  precedents,  being  all  dF  the  time  of 
king  Henry  the  seventh. 

To  the  '6hh  of  these  eight,  being  Edwonl 
Po^'i  Case,  in  T  H.  8,  RoL  93.  Mr.  Attorney 
objected  ihua :  He  said,  that  Edward  Page  was 
committed  to  the  Marshalsea  of  the  Housbold, 
'  per  mandatum  domini  regis  ibidem  salvo  cns- 
<  todteod,  &c'    'Qwaommittitor  Alarescall*, 


STATE  TILIAI2,  3  Charles  1.  \0'2i.—tke  LAerty  tif  ike  Street. 


'&C.  Ho^tii  domioi  regis.'  Bj  which  it  np- 
peutth,  u  be  said,  ihat  the  oourt  renmndcd 
bim  bwik  ta  tbe  prisoD  of  the  Manbalsea  of 
tk  Houtbold :  and  he  «ud,  that  wberenu  it  hnd 
bceo  objected  at  the  first  coDfereact,  that  lliere 
wn  lome  mistaLing  in  the  entri«;  be  can- 
cured,  indeed,  that  there  nas  ■  miUBkiiig,  but 
it  WIS  that  the  clerk  Lad  eiiteied  ■  comnuttitur' 
Ibr  '  rcmittitDr,'  and  that  it  ahuuld  iiave  been 
'  Qui  temitulur  MarMctJlo  Hospitii  domini  re- 
'pi:'  lot  wbeoerer  tbey  remanded  the  pri- 
•oeer,  ■  nmittilur'  and  not '  commiuitilr'  thould 
be  entered.  And  that  miitaking  being  so  rec- 
tified and  uadentood,  he  coDceived  it  iva*  a 
direct  prccedeDt  againU  the  Ketolation  of  tbe 


[US 


To  ibii  it  nu  umrered  b;  the  Gentlemen 
of  tbe  house  of  commoiu,  That  there  wu  no 
doubt,  indeed,  bnt  that  a  mittake  was  in  [he 
tatij  bj  the  clerk,  but  that  the  miitaking  naa 
quite  of  another  Datore.  The  addition  of  thoie 
■mnli,  '  boapitii  dom.  rt^is,'  was  tbe  mittak- 
lag,  and  tbe  entrj  bIiouTcI  have  been,  '  ^ui 
*  commitliLur  Mareuollo,  &c.'  onlv  ;  that  u, 
be  was  comolitud  to  tbe  Marshal  of  the  King's 
Bench;  and  so  iodcett  the  force  of  this  prece- 
dent should  be  but  just  the  Eunc  nitb  the  first 
ibur;  but  tbe  icnorance  uf  the  clerk  that  en- 
teted  it,  knowing  oot  huw  lo  distii^uiab  be- 
tweeo  the  Uarslial  of  the  Houihuld  and  tbe 
Marshal  of  the  King's  Dench,  was  the  cnuse  of 
iheedditionof  tboevrordi, '  hoipitiidoa.  regis.' 
And  to  confimi  fully  this  kind  of  interpreta- 
tiao  of  that  precedent,  and  of  tbe  mistaking  of 
it,  it  was  observed  h;  the  Gentlemen  of  the 
UonseofCommoas,  that  there  is  in  the  margin 
of  the  BoUoQ  infdhble  character  that  justiiies 
■o  iDuch.  For  by  tbe  ciiune  of  that  court, 
wbcnaoever  a  prisoner  is  committed  to  tlie 
Marshal  of  the  King's  Bench  and  not  remand- 
ed, the  word  Mnracalio  is  written  in  the  margin 
short  bj  Marr  turned  up  :  and  tliat  is  never 
wriiten  there,  hut  when  tbe  meauiog  and  lenie 
oflhe  cnir;  is,  that  the  prisoner  is  committed 
to  tbe  ptisan  of  the  same  court.  Now  in  this 
ease  '  Marr' '  in  the  margin  is  likewise  written : 
which  moM  dearly  shews  that  ibe  truth  of  this 
case  was,  that  ihis  PaRC  ^'■i  cotnmitted  to  the 
Manbai  of  the  King's  Bench,  and  nut  remand- 
ed; whtcb  if  k  had  beenf  neitiier  could  the 
entiy  have  been  '  commiltitur,'  nor  should  the 
margin  of  the  Uoll  have  had  ■  Mart'  nriitni 

And  thus  they  have  answered  Mr.  Attorney's 
nlgeutiona  touching  ibis  precedent,  and  cod- 
duded  that  now,  besides  the  first  ibur  of  the 
eight,  tliey  had  another,  and  so  five  to  prove 
that  B  prisQDer  committed  '  per  mindutum  do- 
*  mini  regis,'  generally  was  bailable  by  ihe 
jndeiiientof  the  court.  Uowcver,  it  appear! 
not  in  these  particulani  that  they  were  bailed ; 
which  perhaps  they  were  not,  either  because 
they  prayed  it  not,  ur  because  they  could  not  ! 
fiuJ  tuOicicnt  boil. 

The  sixth  of  tliese  Precedents,  beuig  the 
caseof  ThomiiiCsesai',  in  tbe  8  Jac.  Ke^s  Rot.  ' 
M.  iil.  Attiiruej  objected  tu  it  thus :  TImI  I 


CKsar  being  committed  '  per  mandatnm  do- 
'  mini  i;egi9'  to  the  Marshalsea  of  the  Hous- 
bold,  was  returned  upon  Habeas  Corpus  to  be 
so  comniiited,  and  tberefure  detained  in  prison, 
and  that  the  entry  is,  '  Qui  cominittitur  pri- 
'  sons  Marescal,  prasdict.'  by  which  it  appear* 
clearly, .  iliat  ha  was  remanded  lo  tbe  sam* 
prison  from  whence  be  came. 

To  this  tbe  Gentlemen  of  the  House  of  Com-- 
mons  gave  this  answer :  'J'hev  said,  (hat  tbe 
ubual  entry  of  a  'remittitur,  when  it  is  to. 
shew  that  tlie  court  by  way  of  judgment,  or 
award  upon  a  resolution,  or  debate,  remands 
tbe  prisoner,  is,  '  remit  litur  quousque  secan- 
'  dum  I^em  rieliberatus  fuerit :'  but  when 
they  advise,  or  eite  way  U>  tbe  keepec  of  tli« 
prison  lo  unena  his  return,  or  the  like^  tliera 
the  entry  is  only  '  remittitur'  generally,  or 
'  remittitur  prisons  predict.'  But  it  was  in- 
deed  affirm^  by  Mr.  Keeling,  a  clerk  of  great 
experieDce  in  that  court,  thnt  the  entry  of  a 
'  remiitiiui'  generally,  or  '  remittitur  pri^ioniB 
'  pnedictz,'  was  indifferently  used  for  the  same, 
as  '  remitiiior  quousque,'  &c.  Yet  it  was  ex- 
pressly shewed  byllic  geutlenieuoftbe  Uaui>cor 
Commons,  tliut  there  vros  sometimes  n  dilfer- 
ence,  and  ihat  io  h  might  well  be  in  this  case. 
Fur  in  the  lait  of  these  eight  precedents,  which 
is  Saltonstall's  Case,  they  observed  that  '  rc- 
'  mittitur  prisonm  nrKdicim'  is  often  used  ;  and 
that  it  is  twiceusertonly  for  a  remanding,  during 
the  time  that  the  cnurl  gave  leave  Id  tlie  War- 
den of  tlie  fleet  to  amvnd  his  return  ;  whicli 
shews  plainly,  that  though  sometimes  '  reinit- 
'  titur'  generally,  and  '  remittiiur  quousque,' 
&c.  may  mean  the  same,  yet  sumetimes  it  doth 
nut.  And  that,  in  ibis  case  of  Cssar  it  doih 
not  menu  any  oiher,  but  ordy  so  much  as  it 
dutb  twice  in  that  of  Saltonstall's  case,  was 
proved  also  by  a  Rule  of  the  court,  which  was 
cited  out  of  the  Itule-baok  of  the  court  of 
King's  Bench,  by  which  rule  the  court  expreisty 
ordered,  that  unless  the  stewinl  and  mar^al 
of  the  Iloushold  did  lufficiently  return  the  writ 
of  Habeas  Corpus  lor  Cnsar,  Inat  he  should  lie 
discharged,  llie  words  of  tbe  rule  are,  'Nisi 
'  ptcdicti  Senescallus  et  Marescallus  hospitii 
'domini  regis  sufflcientur  rctumaverint  brere 
'  de  Habeas  Corpus,  Tho.  Cs»«r  die  Mercurii 
'  proxirOK  post  q~uindenam  Sancti  Martini  de 
'  prisona  exonerabitur.'  And  this  was  the  opi- 
nion of  the  court :  which  shews  that  tbe  court 
was  so  far  ftom  remanding  him  upon  tbe  return, 
that  they  resolved,  that  unlets  sotne  better  re- 
turn were  made,  Ibe  prisoner  should  be  dis- 
chni^d  of  bis  6rs(  imprisonment,  though  it  ap- 
peared to  them  out  of  the  bady  of  the  return  . 
(upon  which  they  were  onlv  lo  judge),  that  be 
was  committed  '  per  mandatum  domini  regit' 
only.  And  the  rule  not  only  sliews  tbe  opinion 
of  the  court  then  to  have  been  agreeable  with 
the  Resolution  of  the  house  of  commoos,  but 
also  proves  that  '  Hemittitur;'  generally,  or 
'  Remittitur  prisonte  pnedictie,'  doth  nut  b1< 
ways  imply  a  remanding  upon  judgment  or  de- 
bate. And  this  answer  was  given  to  this  of 
CiESar't  Case,  that  is  tbe  titth  of  [bis  number.  , 


143]  STAl^  TRIAI^,  3  Csahles  I.   102S.r—FH>eudi»ig,vtPaTlianiatirtltahigio  [144 

icieir,  tbni  donbtleM  th«y  wouJd  hsTc  Temanded 
liim  upon  that  mlnne;  Ibr  tlieo  t hejr  needed  not 
nt  all  tn  have  stood  upon  the  other  part  of  Ibe 
return  in  this  case.  So  ihat  out  of  Lhe  Record 
itself  It  Bppeara  fully,  tliHt  tlie  ooart  conceited 
Che  return  to  be  insufficient. 

So  the  Gentlemen  of  Ilie  Hoeae  of  Cnmmons 
included,  that  their  had  a  great  number  of  ' 
Precedeuti  beaiden  diyerr  acts  of  parliament, 
and  Reasons  of  Common  Law,  agreeable  to 
their  Reaolution  ;  and  that  there  was  not  ona 
precedent  at  all  that  made  against  tliem,  -but 
indeed,  thnt  almost  all  ihnt  were  brought,  as 
well  agaiuM  them  as  for  them,  if  rightlj  ander- 
ttood,  made  fully  for  the  mainienaoce  of  their 
Reiolution :  and  ttiat  there  wa«  not  one  tnant- 
ple  or  precedent  of  a  RimittitDr  in  any  bind 
opon  the  point  hirfonj  that  of  desar's  case, 
which  is  before  deared  with  the  re«(,  and  ia 
bnl  of  late  time,  nnd  of  no  tnomerit  againft  the 
Remluiion  of  tlie  Huuse  of  Commons. 

And  thut,  Inr  m  much  n»  coni-emed  the  Pre- 
cedent* of  Record,  tbe  fiist  dny  of  the  Conter- 
ence  desired  by  the  lords  ended. 


Tbe  KvcHlh  is  the  Ceisc  of  Jmnea  Demetrius. 
It  iras  19  Jae.  Rot.  153.  Mr.  Attorney  ohject- 
ed  timt  this  Demetrius  and  divera  others  being 
,  hrewen,  were  comntitted  <  perconcilium  domini 
*  regis'  to  tbe  Mnrshnisea  of  the  Ilousliold,  and 
that  Hpoii  the  commjunent  so  generally  return- 
ed, tliey  were  remanded,  and  iliat  tha  entry 
was  '  immediate  remittitur  pnefacto  mareMxllo 
'pnedicti  botpitii;'  where  he  observed,  that  'im- 
iBediatfe'ibews  that  tbe  Judges  of  that  time  were 
■0  reMlvcd  of  this  question,  thn  they  rcmandqd 
them  presently,  asmen  that  vtdl  knew  what  tbe 
law  wa*  herein. 

Hereunto  the  Gentlemen  of  the  Hoose  of 
Commons  euve  these  Answers.  1.  Thnt  the 
Remittitur  in  tbi)  case  is  but  ai  the  Other  in 
Ccaar's,  and  lo  proiea  nothing  against  them. 
3.  Ybat  '  immediatfc'  being  added  ' 


»  the  anlhority  of  tbe  precedents  to  be  of 
DO  force  in  point  ^of  law;  for  judgments  and 
Bwarda  given  upon  delitwmtion  only  nnd  de- 
batn  are  proofs  and  arguments  of  weight,  and 
not  any  sadden  act  of  the  court  without 
debate  or  deliberation.  And  the  entry  of  '  im- 
mediate' being  propoaed  hy  Mr.  Keeling,  it  was 
confirmed  by  him,  that  by  lh.it  entry  it  appears 
by  this  course,  that  the  remanding  of  him  was 
the  lelf-aame  day  be  waa  brought,  which,  as  it 
vras  said  by  the  Gentlemen  oT  the  House  of 
Communs,  might  be  at  the  rising  of  the  court, 
or  upon  advisement,  and  tbe  like.  And  i)iis  an- 
swer waa  given  to  thi)  precedent  of  the  brewers. 

The  last  "of  the  eight,  to  which  Mr.  Attor- 
ney objected,  is  ShI  ton  stall's  Case,  in  the  13 
Jac.  rvgis.  He  vras  csmmicted  '  per  manda- 
*  tmnduminorum  regis  de  prtralo  concilio:'  and 
being  returned  by  the  Warden  of  the  F!-'et  to 
be  so,  '  Remittitur  prisons  pradicti ;'  and  iu 
the  13  Jnc.  in  the  same  case  there  is  '  remit- 
titur' generally  in  tbe  roll.  And  these  two 
make  but  one  case,  and  are  ns  one  precedent. 

To  this  the  Gentlemen  ofihe  House  of  Cnm- 
roons  answered,  I'hnt  it  is  true,  the  Rolls  have 
such  entries  of  '  remittitur'  in  them  generally, 
but  thnt  proves  nSthino,  upon  tbe  reason  before 
used  by  them  in  Cenars  case.  But  also  Salton- 
atall  was  committed  fui  another  cause  besides 
'  per  maudalum  dom.  re^s,'  a  contempt  against 
an  order  in  the  chnncerj,  nnd  thnt  was  in  the 
return  alsn.     And  besides  the  court,  as  it  np- 

Cnrs  in  the  record,  gave  sei-eral  days  lo  the 
•rden  of  the  Fleet  !□  amend  his  return, 
which  they  would  not  hare  done,  if  they  had 
conceived  it  sufficient,  for  that  which  is  auffici- 


To  this  Mr.  Attofoet  replied.  That  they  gave 
bin)  a  day  to  amend  his  return,  in  respect^of 
that  part  of  it  which  concerns  the  order  in 
Chancery,  and  nrtt  in  reiipectof  that  which  was 
'  per  mnndntum  dom.  re^s.'  But  the  Gentle- 
,  men  of  the  Hou^e  of  Commims  answereit.  That 
that  appeared  not  any  where,  nor  inde«d  i%  it 
likely. at  all,  uor  can  be  reasonably  so  under- 
stood ;  because  if  the  other  return  '  pet 
'  maodatuut  dom,  regis'  bad  beeo  aiifficient  by 


The  next  day,  they  desired  another  Confer- 
ence  with  the  House  of  Comraofti,  at  which  it 
pleased  tlie  Committee  of  both  hnnses  to  hear 
Mr.  Aitomry  again  make  wliat  Ol^ecUons  be 
could  against  other  parts  of  tbe  Ai^^ument 
formerly  dehvered  from  the  House  of  Com- 
mons. He  Ilien  objected  against  tbe  Acta 
of  Parliament,  and,  against  the  Reasons  of 
Law,  and  his  objcciions  to  those  pans  H'ere 
answered,  as  it  appears  hy  the  Ansivers  by  or- 
der given  into  the  House  of  Commons  by  the 
gentlemen  that  made'  them.  (Vide  postea.) 
He  objected  also  upon  the  second  day  neaiost 
thesecund  kind  of  Precedents,  nhicbareReso- 
iutions  of  Judges  in  former  tunes,  and  ant  of 
record,  niul  brought  also  some  other  teadno- 
nieaofibe  opinionsof  Judges  in  fanner  times, 
touching  this  point. 

First,  for  that  Resolution  of  all  the  Judges  of 
England  in  34  Eliz.  mentioned  and  rend  in  ths 
Arguments  at  the  first  Conference,  he  said. 
That  it  was  directly  against  tlie  Keaolution  of 
tbe  Hnuse  ofCummons,  and  observed  the  wortt* 
of  it  in  one  place  to  be,  that  peraoni  ao  com- 
mitted by  the  king,  or  by  the  council,  may  not 
be  delivered  by  any  of  the  courts,  &c.  And  in 
another,  that  if  the  cause  were  expressed,  ei- 
ther in  general  or  in  specially,  it  was  sufficient ; 
and  he  laid  that  the  expressing  of  a  cause  in 
generality  wai  to  shew  the  king  or  the  conncil's 
command :  and  to  this  purpose,  he  read  the 
whole  words  of  that  Resolution  of  the  Judges. 
Then  he  objected  also,  thnt  in  the  Rei'Ort  of 
one  Roawell's  Caie  in  [he  KiiiK's-bench,  in  13 
Jac.  he  found  that  the  opinion  of  ifae  Jud^et 
of  that  oourt  (sir  Edward  Coke  bein;;  ibm  Chief 
Judge  and  one  of  iheiu)  was,  that  a  prisoner 
being  comtnitted  '  per  mBudalum  dom.  re^ia,* 
or'  privati  cuncilii,'  without  caose  shewed,  mad 
so  returned,  could  not  be  bailed  lircause  it 
might  be  matter  of  state,  or  '  Arcana  imperii,* 
for  wbicb  he  stood  cominiiud.  .And  to  tbi> 


W]  STATE  'miALSj  SCbavlesI.  H}2i.—aeLiia1y0tiu!SulyKt. 


[146 


(bo  he  added,  ui  opinioo  be  fbnnd  in  a  Journal 
ID  tbe  House  of  CammDm  of  13  Jac.  nhecvin 
sr  Sdimd  Coke  ipeaking  to  a  Bili  prefinTed 
forihe  eiphmatiao  of  Uagaa  Charca  lunching 
mprBomticiii,  Mid  in  the  aame  houM,  That 
one  M  tOmmitted  could  not  be  inlarecrl  b;  the 
hw,  becinse  it  m^ht  be  matter  ol  state  for 
■hich  he  mi  comnuued.  And  unongst  these 
djectioBt  of  tbe  other  nature  aho,  he  spake  of 
lie  eoufidencc  chat  was  ibewed  in  beholt'oF  the 
Home  of  Commons :  aa'd  he  $aid)  it  nas  not 
canfidencB  on  eidter  part  could  add  anj  thing 
Is  the  detenoiaaiion  of  the  question  :  but  if  it 
codd,  tliat  ha  hadumachreaMiD  of  conRdence 
be  wt  othtr  tide  agaicit  the  Resolalion  of  the 
House  of  CommODi,  groandiog  himaelf  upou 
the  fnce  of  hit  olyectioiia,  ubicb,  ai  he  coa- 
cnTed,had  ta  veakensd  [be  aifuiiienM  of  ihe 
House  of  Conunons. 

To  thia  a  replj  wu  made ;  and  6rU  it  wBi 
nd  to  the  lords  an  the  behalf  of  the  Houic  of 
Comniona,  Ttiat  noCwithttanding  uaj  thing  ;fet 
b^ected,  the;  were  upon  dear  reason  still  coa- 
fidcnt  of  tbe  truth  of  their  first  Reeolutinn, 
troanded  upon  to  iOst  examination,  and  deU- 
berUion  taken  b;  them.  And  it  was  observed 
10  tba  lords  also,  that  their  confidence  herein 
miof  another  nature,  and  or  ureaier  weight, 
than  anj  confidence  that  could  be  eipreued 
hj  Mr.  Attornej,  or  whomsoeTer  else  betnij  of 
In  nujestj's  counsel  leanied. 

To  vbidi  purpose  the  lords  nere  desire'd  to 
tAt  into  tbmr  memories  th«  difference  between 
Ac  prMent  qualities  of  the  Gentlemen  that 
ifAks  in  behalf  of  ihe  House  of  CommoiiE,  and 
aCtbe  King's  learned  Cnuosel  ib  their  speaking 
tfaetc,  tiowiocver  accidentallji  they  were  boili 
BKQ  or  the  same  profession  ;  Ibr  the  King's 
Connsd  spake  as  counsel  perpetually  retained 
bjfre,  and  if  tbe  J  made  glosses  or  tthnt  adrin- 
ti{eoiis  interpretation  soever  for  their  emi 
pin,  ibej  did  but  what  belonged  to  ttieir  place 
and  qnaticj,  as  Mr.  Attorney  had  done.  But 
the  Gentlemen  that  spake  in  behalf  of  the 
House  of  Commons,  came  there,  bound  on  tlie 
BBC  side  by  the  trast  reposed  in  ibem  b;  their 
eoiDCr;  that  sent  them,  and  on  the  other  tide 


Kighls  and  Prert^tives  of  tbe  Crown  ;  so  that 
*K0  in  tbe  point  of  confidence  alone,  those  of 
(btm<that  speak  as  maitjed  counsel  b;  perpe- 
toal  fee,  and  those  that  by  their  place  being 
Mmitted  to  Speak,  are  bound  t«  utt«r  nothing 
hut  truth,  bdih  by  such  a  tnist  and  such  an 
ouii,  were  no  way  to  be  so  compared  or  coun- 
terpoised, as  if  the  one  were  of  no  more 
weubi  dian  the  other. 

Aai  then  the  Objectiont  bviiOTe  meotioaed 
*Re  alto  answered. 

Vta  that  uf  tha  Resolution  of  all  ibe  Judges 
Of  England  in  34  £lii.  it  was  shewed,  that 
Vinnly  it  sgreed  nith  the  Retotulion  of  the 
DMie  of  Commons :  for  althnugb  inderd  it 
^ht  have  been  expressed  "iih  more  parspi- 
«ntr,y«thewordsoftt,as  theyare,solBciently 
<bew  the  meaning  of  it  te  b«  ao  otherwise. 

TDL,  IK, 


To  thnt  purpose,  Tiesides  ihe  words  of  tlie  whule 
frame  ol  tins  Resolution  of  llie  Judt^es,  as  it  i» 
in  the  cupy  transcribed  out  of  the  L.  C.  Jiiv 
tice  Anderson's  Book,  nrltlen  in  iiis  own  hand, 
which  book  Vas  here  offered  to  be  shewt^d  i^ 
the  behalf  of  the  bouse  of  cotnmnns;  iiims  ob- 
served, that  tlie  words  of  the  fitsC  pRrt  of  it 
shew  plainly,  that  all  the  Judges  of  Eugiond 
then  resolved,  that  the  prisoners  spoken  of  in 
the  first  part  of  tbeir  Resolution  were  oa\]f 
piisonera  committed  with  cauie  shewed ;  for 
they  only  say  they  might  not  be  delivered  tij 
any  court  without  due  trial  by  law,  and  judg- 
ment of  acquittal  had;  ahidi  shews  plainly 
they  meant  that  by  trisl  and  acquittoi  they 
might  be  delivered.  But  it  is  clear  (hat  no  trial 
or  acquittal  can  be  had,  where  there  is  not 
some  causa  laid  to  their  charge,  for  which  tlu..- 
onght  to  stand  committed.  Therefore  in  that 
part  of  tbe  Besolution  »ucb  prisonera  are  only 
meant  as  are  committed  with  cause  shewed, 
which  also  tlie  Judges  in  that  Reiotution  ex* 
pressly  thought  neceisnry,  as  appears  in  tlu: 
second  part  oF  their  I^esolutiou,  wbc-reiu  they 
have  these  words :  '  If  upon  tbe  return  of  iheir 
'  Hnbeap  Corpus,  the  cause  of  their  cuimuit- 
'  ment  be  certified  to  the  Jud;;es,  as  it  oujlit  to 
'  be,  &c.'  By  which  words  they  shew  plainly, 
that  every  return  of  a  commitment  is  iii3u&-' 
cient  that  bath  not  a  cause  &liewed  of  it.  And 
to  that  which  Mr.  Altornev  said,  as  if  the  cause 
ncre  tnfGciently  expresscti  in  generality,  if  the 
kino's  command  or  the  council's  were  e:(pressed 
in  it,  as  ifthat  were  meant  in  the  resolution  for 
a  sufticient  general  cause  j  it  whs  answered. 
That  it  WHS  never  heard  or  in  Ian-,  that  the 
power  or  person  that,  committed  the  prisoner 
was  understood  for  the  '  cauia  captiouis'  or  , 
'  cama  detentionis,'  but  only  the  reason  why 
that  power  or  person  committed  the  prisoner.  . 
As  also  in  common  speeili,  if  any  man  ask  m  liy 
or  for  what  cause  a  man  stunds  csmmitted,  tiie 
nnswer  is  not,  that  such  a  one  committed  him, 
but  his  oflence  br  some  other  cause  is  under- 
stood in  the  queuioo,  and  is  to  he  shewed  in 
the  nniwer.  But  to  say  that  such  a  one  com- 
mitted tlw  prisoner,  is  an  answer  ooly  to  tbe 
question,  who  committed  btin  f  and  not  wliy, 
or  fnr  what  cause  he  stands  so  conimitleil? 

Then  for  that  of  tlie  cnuy  of  the  Report,  in 
13  Jac.  shewed  foi  th  by  Air.  Attorney,  it  wai 
answered  by  tbe  Gentlemen  of  tlie  House  of 
Commons,  That  the  report  itself  which  had 
been  before  seen,  and  perused  among  many 
other  things  at  a  committee  made  by  the  liouije, 
was  of  sli);ht  or  no  authority,  for  that  it  was 
taken  by  one,  wbo  was  at  tiiat  lime  a  young 
student,  and  as  a  reporter  in  the  King's  Bench, 
and  there  was  not  any  other  report  to  be  found 
that  Hgreed  with  it.  Secondly,  Ahhough  tbe 
repnrls  of  younp  students,  when  tiiey  take  the 
words  of  Judges  as  tbey  f^l  from  tlicir  moutlls 
at  the  Bench,  ai^l  in  the  tauie  person  and  form 
ley  have  spoken,  may  be  of  good  credit ; 


ported:  but  in  truth  there  being  three  cases  at 
a  time  in  the  EingVSench,  one  EoswcU'scase, 


Hi]  STATE  TRIALS,  SCuAmiMl.  i62t.—Pr<KeediiigiiaPaTlumntrdotvigto  [!« 
ihey 


,Aileii'»,  "lid  SftltontlaU's  c«ie,  every  of  which 
hnil  aomclliiiig  of  Ube  nnlure  in  it,  the  ttudcnt 
^having  been  presFnc  ia  the  court,  mnde  Up  llie 
frame  of  one  report  or  ote  out  uf  all  three  in 
liU  own  wortls,  and  so  put  ii  iniu  bis  Buolt :  to 
tiM  there  is  not  n  worti  in  the  report,  but  it  is 
frained  accixlinf;  to  the  student's  fancy,  as  it  is 
written;  and  nothing  it  expressed  in  it,  as  it 
Iciime  from  tl*  mouth  of  the  Judges,  otherwise 
,'thiiii  hi*  ftncy  directed  iiim. 

Thirdly,  There  are  in  iho  report  plain  fals- 
hoodj  of  matier  of  fact,  which  are'io  be  Bltri- 
butcd  either  to  the  Judges  or  lo  ihe  reporter. 
It  is  most  likely  by  all  reason,  that  they  pro- 
ceeded I'ruin  the  Reporter's  fault;  howsoever, 
the^e  mHlleni  of  fnlshund  shru  sufficiently  that 
the  ciedit  of  the  rest  it  of  li^Jit  vulue.  Ii  is 
a:ud  in  the  report,  that  Ilarecuurt  beini:  com- 
biittrd  by  the  council,  was  bniled,  iii  40  Eliz. 
upon  a  privy-seal  or  a  Utieri'wherena  in  truth 
there  is  iio  bucIi  thing.  And  it  is  said  there, 
thitt  kiuri  of  IrlteiB  me  6led  in  the  cronn-oftice, 
whereas  hi  tniih  therf  was  not  any  such  kind 
of  letters  filtd  there  in  any  case  whatsoever. 
That  Hesoliiiiou  ol  the  Judges  in  SI  £liz.  is 
mis-cited  there,  and  made  in  36  Rliz.  And  it 
j;  hail!  tbert,  that  by  that  Resolution,  a  prisoner 
retiinicd  to  be  cmninitti d  by  the  command  of 
the  kin; ,  might  uot  at  all  be  delivered  by  the 
court ;  u  hereas  no  sudi  thing  is  couipre bended 
in  tiiat  Resolution. 

But  ihiit  which  i*  of  most  moment  is,  that 
howsoever  the  truth  of  the  report  were,  yet 
the  opinion  of  the  Judges  be! iii;  sudden,  and 
without  any  debate  had  of  tbe  case,  is  of  linht 
■noriieiit:  lor,  in  dithcidt  points  especially,  tl]e 
mrst  prate  and  learned  men  living  may  on  the 
suddtn  lei  i'nII  (and  lliat  nithout  any  disparage- 
ment to  them)  such  opinions  as  iky  may  " 
mid  niighi  to  change  upon  fiirtiier  inrjuiry, 
minntiiin,  and  full  debate  had  before  tbein, 
mature  deliberntion  tal.n  by  ihem. 
plainly  in  that  ol  13  Jac.  there  is  not  so  much 
ns  a  pretence  of  any  debate  at  the  bar 
bench.  All  that  is  reiijrted  lo  bnve  been, 
'  Imported  us  spoken  ol  the  sudden.  And  < 
»nv  men  lake  such  a  sudden  opinion  lo  be  of 
value  B|{ain't  solemn  debates  and  mntui'e 
'  berntions  since  had  of  tin  point?  And  indeed 
this  tire.it  point,  and  all  circumstances  belong, 
ina  to  it,  have  within  this  half  year,  been  so 
fullv  exuiiiined  nnd  searched  into,  tliat  ii 
wefl  be  affiriiied,  that  the  most  learneil 
whi't-otitT  that  hath  now  considered  of  it,  hath 
wiihin  that  time,  or  might  have,  learned  i 
reason  of  sutisfactbn  in  it,  than  ever  before  lie 
met  »iih.  Therefore  the  sudden  opinion  of 
the  Judges  lo  the  contrary  is  of  no  value  here, 
which  alsri  is  to  be  said  of  thai  opinion  obvi- 
Audy  (teliveied  in  the  commons  bouse  in  18 
.Tac.  ns  Mr.  Attorney  objected  out  of  the  Jour- 
nal of  the  house.  But  besides,  neither  was  the 
Iruih  of  that  report  of  that  Opinion  in  the 
,  Joiirnirl  any  way  acknowledged;  for  it  was  said 
in'lietmlf  of  tbe  house  of  commons,  that  theii 
Journals  were  for  mHtters  of  Orders  and  Reso- 
lutiljns  of  the  hoose  of  such  authority,  as  tliat 


their  records.  But  for  any  parti- 
cular man  s  opinion,  noted  in  any  «f  them,  it 
was  so  far  from  being  of  any  sutburity  with 
them,  that  in  truth  no  particular  opinion  is  at 
ah  to  be  entered  iu  tliem,  and  that  their  clerk 
offends,  whenever  he  doth  to  the  contrary. 
And,  to  conclude,  no  such  opinion  whataoevpf 
can  be  sufficient  to  weaken  the  clear  law  com* 
prehended  in  tliese  resolutions  of  the  house  of 


10  many  precedents  of  record,  and  the  re- 
ion  of  an  the  judges  of  England  ;  and 
agjinsC  which  not  vne  law,  written  or  unwritten, 
not  one  precedent,  not  one  reason  hath  beea 
brought,  [hat  makes  any  thing  lo  the  contrary. 
And  thus  ended  the  next  day  of  the  Confer- 
ee desired  by  the  lords,  and  had  by  a  Com- 
mittee of  both  houses. 

Se^eant  AsDLET'sAncDMEHT,  seconding  Mr. 
Attorney,  in  the  behalf  of  his  Majesty. 
I  hope  it  will  be  neither  offensive  nor  lediou* 
to  your  lordships,  if  I  said  somewhat  to  second 
Mr.  Attorney !  nliich  I  the  rather  desire,  be- 
cause yesterday  it  was  taken  by  the  Gentlemen, 
aiid  argued  <>n  the  bibalf  of  the  Commons, 
that  tbe  cause  was  as  good  as  gained  by  iht^m,  . 
mid  yielded  by  us,  iu  tbat  we  acknowledged 
the  statute  uf  Alagna  Charla,  and  the  oilier 
subsequent  Stntutts,  to  be  yet  in  force  :  for  od 
tliat  they  enforced  tiiis  (general  conclusion  ; 
'  That  (lierefore  DO  man  could  be  commilted, 
'  or  imprisoned,  but  by  due  process,  presenc- 
'  inent  or  indictment.'  Which  we  say  is  » 
Mm  icfuitur  upon  such  our  acknowledgment; 
for  then  it  wuuld  follow  by  necessoiT  conse* 
quence,  that  no  imprisonment  could  be  Justi- 
fied but  by  process  uf  biw,  wiiicll  we  utterly 
deny.  For  in  the  cause  of  tlic  Constable  cited 
by  Mr.  Attorney,  it  is  most  tleiir,  that  by  tbe 
ancient  law  of  the  land  a  constable  might  ii 
t^io,  without  any  watraut,  arrest,  and  rcstrtuD 
a  man  lo  prevent  an  affray,  or  to  suppress  ii. 
And  so  is  ilie  authority  38  lien.  8,  Brook's  Ab- 
stract. So  may  he,  after  the  nlTray,  apprehend 
and  commit  to  prison  the  peisnn  that  liaih 
wounded  a  man  thnt  is  in  peril  of  death,  and 
that  without  tvarrant  or  process  ;  as  it  is  in  38 
E.  3,  fol.  6. 

Also  any  man  that  is  no  OScer  may  appre- 
hend a  felon  'A-ilbout  writ,  or  warrant,  or  puisue 
him  as  a  wolf,  and  as  a  commun  eneinv  lo  th« 
Commonwealth,  ai  the  Book  is  14  Hen.  3, 
fol.  16.  So  miglit  any  one  arrest  a  night- 
walker,  because  it  is  for  the  common  profit,  as 
the  reason  is  given  4  Hen,  7,  fol.  7. 

In  bke  manner  the  Judges  in  these  several 
Conrts  may  commil  a  man,  eitbci  for  contempt 
*or  misdemeanor,  wiihoul  either  process  or  war- 
radt,  other  than  '  Take  him  Sheriff,'  or  ■  Take 
him  Marshal,  or  Warden  of  tlie  Fleet.'  And 
the  adversaries  will  not  deny,  but  if  the  king 
will  aliedge  cause,  he  may  commit  a  man  '  per 
'  mandntum'  as  the  Judges  do,  wilhout  process 
OT  warmnt. — And  various  are  the  ctues  tliaC 
may  be  instanced,  wherein  tbeie  may  b«  a 


149J  ffTATE  TRIALS,  3  Charlei  1. 

Iiwfid  comniitmeiit  without  proceii.     Wbere- 


bbited  bj  the  Ian, 

Whicb  being  jjranled,  then  the  questinn  will 
tptl^  be  made.  Whether  the  King  or  Council 
nsj  coniinit  to  prison  '  per  lejiem  lerra-,'  were 
onlf  that  a  part  of  the  municipal  Ian  of  this 
reilDt,  whicb  we  call  the  Coouuon-Law  ?  p'or 
ibeiT  m  also  diven  Juriadicliotu  in  this  king- 
dom, ohicb  are  also  reckoaed  the  law  of  ihe 
hnd. 

As  in  Cawdr^'s  Case  in  Coke's  5th  report, 
faL  1.  the  lirsc  ecclesiastical  luw  is  held  ihe 
tiwofthe  land,  to  punish  blasphemies,  schisms, 
Imciies,  simony,  incest,  and  tt>e  like,  for  a  gaoil 
mson  there  rendered,  nz.  That  otherwise  ihe 
kins  should  not  have  power  to  da  justice  to  liis 
nhjKts  in  all  cose^,  nor  to  punbli  all  crimes 
wiitiin"hts  kingdom. 

TIk  Admiral's  Jurisdiction  is  also  Itx  terra, 
ordiiD^  done  upon  the  ICB;  but  if  the;  ei- 
cnd  [Iwir  jurisdiction,  Bprohibitino  is  awarded 
npoD  the  Statute  of  RuUui  JiierAofflii;  bjr  which 
upears  thai  the  statute  is  in  force,  ai  we  hace 
ickDowledged. 

The  Martial  Law  likewise,  tboDgb  not  to  be 
eiercised  in  times  of  peace,  nhen  recourse 
.  ma;  be  bad  to  the  binp  s  courts,  yet  in  times 
Df  iiirasion,  or  other  tmies  of  hostility,  when 
in  mnj-royal  is  in  the  field,  and  oHoDces  are 
eooiiBitted,  which  require  speedy  refiinuaCion, 
•sdcannotei  peel  the  solemnity  of  legal  Trials  j 
Cbea  sDch  imprisonment,  execution,  ur  other 
jsstics  done  by  the  Uir-martia)  is  wariantable, 
Jbritia  then  the  law  of  the  land,  and  is  jut 
putjun;  which  erer  serves  for  a  supply  in  the 
defrct  oF  the  common  law,  when  oniiuary  pro- 
ceeding cannot  be  had. 

And  so  it  is  also  in  the  case  of  the  Law  of 
dieHerchant,  which  is  mentioned  13  Edw.  4, 
bl.  9,  lO,  where  a  Merchant-stranger  «m 
■nongetMn  his  goods,  which  he  had  committed 
lo  I  currier  to  coovey  to  Southampton,  and 
the  carrier  imbeiited  some  of  the  goods:  fur 
remedy  whereof  the  Hercbant  sued  before  the 
crancQ  in  the  Star-Chamber  for  redress.  It  is 
ifaeie  nid  thus  :  Mercbant-stran^r^  have  b^ 
■ke  king  safe-conduct  for  coming  into  this 
rahn;  therafore  ihey  shall  not  be  compelled 
tn  stteud  the  ordinary  trial  of  the  common 
la*,  bur,  for  expedition,  shall  sue  before  the 
kinifs  council,  or  in  Chancery,  '  de  die  in  diem 
'  eiilc  horft  in  honm ;'  where  the  cose  shall  be 
dHnmiiied  by  the  Inw  of  merchants. 

lo  the  like  manner  it  is  in  the  T.an  of  State ; 
"heo  tbe  necessity  of  state  requires  it,  tliey  do 
*nd  may  proceed  to  natural  equity ;  as  in  those 
Mher  eases  where  the  law  of  the  land  provides 
not,  there  the  pmceediiig  may  be  by  the  law  of 
natural  eqoi^:  andlnfinltearetheoccurrrnce: 
af  Hate,  unto  which  tbe  common  law  eitend: 
sot.  And  if  these  proceeding  of  state  should 
Dotdio  be  accounted  the  law  of  the  land,  then 
■«  do  fall  lata  Ihe.  same  incooveniency  men- 
^Htdia  Cawdry'f  oase,  that  tbe  king  should 


1028.— (/«  Liberlyqfthe  Sni^rt.  [ISO 

not  be  able  to  dojustice  in  all  cases  within  hi* 

If  iheo  the  kiiignorhiscouDcilmay  not  com- 
mit, it  must  needs  follow,  that  either  llie  king 
must  have  no  cuuncil  of  stale,  or  having  such  k^ 
council,  tliey  must  have  no  power  lo  nmke  or- 
ders,  or  nets  of  state;  or  if  they  may,  tljey  must 
be  wiibout  means  to  compel  obediunce  lo  tbo;e 
acts ;  Biid  so  we  shall  bIIhw  ibcm  jurisdiclion, 
but  not  compel  obedience  lo  those  acis :  but 
not  correction,  which  will  be  then  us  fruitless  a* 
the  command.  '  Fiustra  potentiu  qus  nuu- 
'  quam  redi^tui  in  slatutum.'  Whereas  ihe 
very  act  of  Westminster  the  first,  shews 
plainly  thai  the  king  may  commit,  and  that 
his  commitment  is  koful,  «r  else  that  act 
would  never  have  declared  a  man  W  be  irre- 
pleviable when  he  is  cammiiled  by  the  com- 
mnnd  of  the  king,  if  the  law-makcri  had  con- 
ceived that  lu's  commitment  had  been  unlawful. 
And  Divine  Truth  mfbnns  us,  thut  the  kiiiga 
have  their  power  from  pod,  the  Psaitnist  call- 
ing ibcm  '  the  children  of  ihe  Most  High;' 
which  is  in  a  more  special  manner  understood 
than  of  other  men ;  for  all  ilie  sons  of  Adam 
are  by  election  tliesonsofGoil,  and  all  the  toni 
of  Abraham  by  recreation,  or  regeneratinn,  lb* 
children  of  the  Most  High,  in  respect  of  the 
powerwhichii  committed  unto  them;  viholiaili 
also  furnished  them  nith  uruamenls  and  armi 
tit  for  ilie  exercising  of  that  power,  and  hatb 
given  iliem  Bcepires,!»ord>,  aiid  crowns;  scep- 
tres to  institute,  and  swords  to  eiecme  ians ; 
and  crnwns  as  ensigns  of  that  power  and  di^ 
nity,  with  which  they  are  iavtsled.  Shall  w*  , 
then  conceive  that  our  king  halh  so  far  troni- 
mitted  the  power  of  hb  sword  to  inferior  ma- 
gistrates, cliat  he  hath  not  reserved  so  much 
supreme  power  as  to  commit  an  offender  to 
prison?  10  Hen.  6,  fol.  T,  it  appeais  that  ■ 
steward  of  a  court  leet  may  commit  a  miin  la 
prbon,  and  tlinll  not  the  king,  from  vhom  all 
mferior  power  is  deduced,  have  power  to  com- 
mit >  We  call  him  the  Fountain  of  Justice,  vet 
when  these  streamy  and  rivulets,  which  flow 
from  that  fountnin,  cume  fresh  and  full,  we 
would  so  far  exhaust  that  fooutain,  as  ;u  leave 
ii  dry.  But  they  that  will  admit  him  so  much 
power,  do  require  the  expression  of  the  Cause  ; 
I  demand  whether  they  will  have  a  general 
cause  olledBcd,  oraspecinlP  if  general,  us  they  , 
have  instances  for  treason,  felony,  or  for  con- 
tempt,  (for  to  leave  fcncing.and  to  speak  plainly 
as  they  intend  it)  viz.  If  loan  of  money  should 
be  required  and  refused,  tihd  thereupon  a  cono- 
miiment  ensue,  and  the  cause  signified  to  be  Ibr 
contempt,  ihis  being  unequal  inconvenience 
from  yielding,  die  remedy  is  sought;  in  [lie  next 
parliament  would  he  required  tiie  expression  of 
the  particular  cause  of  the  comiuitinent.  Then 
fit  would  it  be  forkingorciiunol  iii  cases 


whether  it  be  monarchical,  or  of 
any  other  frame,  which  hate  not  some  secrets  ijf 
state,  not  communicable  to  vulgar  undcrscand- 


15iJ  STATE  TRIAXS,  3CaAit(.RsI.  l&23.-~PnKeedmgiiaParJiamaaTeiatingio  [16% 

I  will  instance  hut  one  ;  if  a  king  emplojr  an 
•mba^sadoi  to  a  Torcign  country  or  stale,  with 
iD^trunions  fyc  his  nejiociattoD,  and  he  pursue 
not  Ills  inslruciions,  whereby  ditlionour  aiid 
damage  tnay  ensue  to  the  king(lon>,  is  not  this 
committjblef  And  yet  the  particular  of  his  in- 
stfdctiun,  and  Ihe  mnnuer  afhij  miscairyinK,  is 
not  fit  to  be  declared  to  his  keeper,  or  by  nini 
tO'be  certified  to  the  Judges,  where  it  is  lo  be 
opened  nnd  debated  in  the  presence  of  a  j^reat 
audience. 

I  therefore  conclude,  for  offences  ngninst  the 
State,  in  case  of  Stnta  GsTemnient,  the  Ling 
and  his  council  have  Jiiwful  power  to  punish  by 
imprisonment,  without  shewing  particularcause, 
where  itmay  tend  to  tbe  disclosing  of  State  Go- 
vernment. It  isnellkDOwnto  many  thatkuovF 
me,  ho*  much  I  have  laboured  in  this*law  of 
the  Ruhjects  liberty  very  many  years  before  I 
was  in  the  king's  service,  and  had  no  cause  then 
to  speak,  hut  to  speak  tTaninw;  yet  did  I  then 
maintnin  and'publish  tlie  same  opinion  which 
now  I  [luve  declared  cohcerning  ibe  king's  9|i- 
preme  power  in  matters  of  stale,  and  therefore 
cannot  justly  be  censured  to  speak  at  this  pre- 
sent only  to  merit  of  my  master.  But  if  I  may 
freely  speak  my  own  understanding,  I  conceive 
it  to  be  a  question  loo  high  to  be  determined  by 
nny  legal  direction ;  for  it  must  needs  be  an 
hard  case  of  contention,  wlien  the  conijueriir 
muit  nit  down  with  irreparable  losses,  ns  m  this 
casr.  If  the  subject  prevails,  he  gains  liberty, 
but  loseth  the  benefit  of  that  State  Govern- 
mfnt,  by  which  a  nvonnrchy  amy  soon  become 
an  anarchy  [  or  if  the  State  prevails,  it  gains 
absolute  sovereignty,  but  loseth  subjects :  not 
their  sutQection,  for  obedience  we  must  yield, 
though  nothiiig  he  lefl  us  but  prayers  and  tenrs, 
but  yet  loseth  the  best  put  of  them,  which  is 
their  affections,  whereby  sovereignty  is  estab- 
lished, anil  the  crown  firmly  fiit  on  his  royal 
bead.  Between  two  such  eitreroes  there  is  no 
way  to  nwderate,  but  to  find  a  medium  for  the 
nccon>niod.itinn  of  tlie  difference ;  which  is  uot 
fer  me  to  prescribe,  but  only  to  move  your  lord- 
abips,  to  whom  I  submit. 

After  Mr.  Segeiini's  speech  ended,  my  Lord 
PrestdenI  said  thus  lo  tlie  GentlemeQ  of  the 
House  of  Cominons;  ■  That  though  at  this  free 
*  conference,  liberlv  was  given  by  the  Lords  to 
'  the  king's  counsel  to  speak  what  they  thought 
'  fit  for  bis  mojesiy,  yd  Mr.  Seijcant  Ashley 
'  had  nu  authorily,  or  dircctioa  from  than  to 
'  tpcak  in  lluil  manner  he  had  done.'  And  he 
was  committed  into  custody,  and  afterwards, 
being  sorry  for  any  hasty  expression  be  m^ht 
hare  used,  wns  discharged. 

The  Objections  of  the  King's  Counsel,  with 

the  ANBwins  mad«  thereunto,  at  (be  two 

Confereiices  tonebiog  the  same  mailer. 

It  was  agreed  by  the  Aitomey-Qenenl,  sir 

Robert  Uenth,  that  the  seven  Sutatas  urged 

by  tlie  Ci'inmuiis  were  in  force,  and  that  Miij^na 

Chiiitn  did  extend  most  properly  to  the  king. 

But  he  said,  1,  Thnt  some  of  them  arc  in  ge- 

iicrul  wurds,  and  thereiure  couolude  nothing. 


but  are  to  be  expounded  by  the  precedents; 
nnd  olliers  that  be  more  particular,  are  applied 
to  the  sujigesiidiis  of  subjects,  and  not  to  the 
king's  command  'simply  of  itself.  Hereunto  it 
was  answered.  That  the  Statutes  w^re  as  di- 
rect ns  could  be,  which  appeareth  by  the  read- 
ing of  tbein  ;  and  that  ihougb  some  of  tbem. 
speak  of  suggestioas  of  the  subjects,  yet  oihet* 
do  not :  and  they  tliat  do,  are  at  effectual,  for 
that  tltcy  are  in  eijual  reason,  a,  commitment 
by  the  command  ot  the  king,  being  of  as  great 
force,  when  itmovetb  by  a  su^estion  from  a, 
subject,  as  when  the  king  taketh  notice  of  it 
bimsalf ;  the  rnthn:  for  that  kings  seldom  inter- 
meddle wiih  matters  of  this  nature,  but  by  in- 
formation from  some  of  their  people. 

2.  Mr.  Attorney  objected,  that  ■  per  legem 
'  terrx'  in  Magna  Charta,  (which  is  the  foun- 
dation of  ibis  question)  cannot  be  understood 
for  process  of  the  la.w  and  orl^nal  writs  ;  for 
that  in  all  criminal  proceedings  no  original 
writ  is  used  at  all ;  but  every  constable  either 
for  felony  ar  breach  of  the  peace,  or  to  prevent 
the  breach  of  the  peace,  may  commit  without, 
process  or  original  writ,  and  it  were  hard  the 
king  should  not  have  the  power  of  a  constable. 
And  the  statute  cited  hy  the  commons,  make* 
procBEB  of  the  Isiw  and  wricongiDul,  to  ba  aU 

The  answer  of  the  Commons  to  this  objco- 
tinn  was,  tbit  they  do  not  inicnd  original  writ* 
only  by  Uw  of  the  land,  but  all  oTber  l^al  pro- 
cess, which  comprehends  tlie  whole  proceed- 
ings of  law  upon  caute,  other  than  trial  by 
jury,  Judicium  parium,  unto  which  it  is  oppos- 
ed.. Thus  much  ii  imported  ex  vi  ttnaiia  out 
of  the  word  process;  tuul  hy  the  true  accepta- 
tion thereof^  in  the  statutes  that  have  been 
uied  by  the  commons  to  nm  in  tain  the  (tedara- 
tion,  nod  most  especially  the  statutes  of  95  Ed. 
3,  cap.  4,  where  it  appeareth  that  a  man  ought 
10  be  brought  in  to  answer  by  the  course  of  Uis 
law,  having  former  mention  of  prooeu  mad* 
by  original  writ. 

AndiQ3BEd.  3,cap.  3,<bythecauneofthe 
law'  is  rendered  '  1^  due  process  of  the  law.* 
And  36  Ed.  S,  Hot.  Pari,  n,  SO,  the  petition  of 
the  commoiis  soith,  <  thht  no  man  ought  t»  be 
imprisoned  by  ^>ecial  command  without  in- 
dictment or  other  due  process  lo  be  made  bj 
the  law,'  37  Ed.  3,  cap.  18,  calletb  the  samo 
thing  '  process  of  the  law ;'  and  49  £d.  3,  cap. 
3,  stilelh  it '  by  di^e  process  and  writ  original  ;* 
where  the  conjunctive  must  be  taken' for  a  dis- 
junctive, wliicb  change  is  ordinary  in  an  expo- 
sition of  statutes  and  deeds,  to  avoid  incoi^re- 
□ienceii,  to  make  it  stand  with  the  rest ;  and 
with  reason,  as  it  may  be  collected, '  by  the  latr 
of  the  land'  in  Magna  Chartn,  'bythecoarte  of 
the  law' in 3S  Ed.  3,  <bytbe  daeprocetsnflaw' 
in  98  Ed.  3,  '  other  due  procpss  to  be  made  by 
Ihe  law'  in  3G  Ed,  3, '  process  of  the  law'  io  37 
£d.  3,  and  >  by  due  process  and  writ  original'  in 
49  Ed. '3,  are  meaui  one  and  the  same  thing; 
the  lutiet  of  these  statutes  referring  always  to 
the  furmrr,  and  that  all  of  tfaem  injport  any.due 
and  regular  froccediog?  of  law  upOQ  a  caiiw . 


US}         ^ATB  TIOALS-.  3  Crabub  L  mes.—the  Uhrrij  cf  ^  5h^. 


[IH 


«tCT  tbui  the  Trial  b^  Jury.  And  thi»  ap- 
poKtb  10  Hep.  71,  in  the  caw  of  the  Mir- 
iteliea,  and  11  Bep.  99,  James  Ba#g's  case, 
vIieR  JL  ii  ubdeistood  of  giving  jansdiciion  b^. 
charter  or  pre*cription,  whicli  it  tlie  erxiund  of 
■  pnKeedion  bj  couise  of  lam.  And  in  Scl- 
'  dm'iNote*  on  For[acue>  f<>l-  39)  tvbeK  ic  i» 
ctpoonded  for  law-vriuer,  which  is  likewite  a. 
liial  at  law  by  the  oath  of  the  panie*  di&ring 
fiooi  tbat  bj  jurj.  And  it  doth  trulj  conipr*- 
kod  Uieie  and  all  other  regular  proceedin|p 
ii  U«  upoa  cauM,  nhich  give*  authority  to 
Jw  dustable  to  arreit  upon  coute.  Aiid  if 
thit  be  not  the  tme  exposiuon  of  these  words 
'^  Urbh  tCTTs,'  the  kiug'i  cbhbmI  were  de- 
fied to  declare  their  meaniog,  which  tbej  never 
g&rcd  to  do  ;    and  jet  certuol;  these  wolds 


o  th«  11 


iDlf  ibi 


tnikio  of  1       . , 

And  thereupon  Mr.  SerjeBnt  Aibln  offered- 
■aiaterpretaticiD  of  ifaem.  thus  :  auaely,  Tbat 
then  were  diver*  laws  of  tbis  reabn,  a*  the 
CoatmOD  Lanr,  tb«  Law  of  the  Chancerr,  the 
Ecdraiutica]  Law,  Cbe  Law  of  the  Admiralty 
or  Hiriua  Law,  the  Law  of  ihe  Merchants,  the 
Uutial  Law,  and  tbe  Law  of  State ;  and  tbU 
tbcK  words  '  per  legem  teres,'  du  etteod  to 
til  these  laws. 

To  this  it  was  answered,  That  we  read  of  no 
Lt"  of  Slate,  and  tbat  noneof  these  laws  can 
be  nkeaat  there,  save  the  ComBwio  Law,  which 
ii  ibe'principsL  and  general  law,  and  is  atwaj* 
Bodentood  by  way  of  exceUency,  when  men- 
boii  is  made  of  tlie  law  of  the  land  gener^y : 
ud  that  though  each  of  the  other  Itfws,  which- 
WC  admitted  into  this  kiDgdoin  by  cuitoin  or 
•a  of  parliaiitent,  may  JMily  be  called  a  law 
<lf  the  land,  jet  none  of  them  can  have  the 
pre-emtof ikce  to  be  stiled  lAe  taw  of  the  land. 
And  no  Statute,  Law-Book,  or  other  Auiho- 
isj,  printed  or  unprinted,  could  be  shewn,  to 
proTB  that  tbe  law  of  tbe  land,  being  generally 
mentioDed,  woe  ever  intended  of  any  other 
tbto  tbe  Commou  Law ;  and  yet  even  by  ihesa 
adicr  la>r),  a  man  may  not  be  commitliea  witli- 
Mt  %  cause  espretsed. 

But  it  ttandeth  with  th9  rule  of  other  legal 
ttpositinns,  that  '  per  legem  terra;,'  must  be 
mesne  the  Conunoo  Law,  which  ii  the  general 
nd  noivenal  law  by  which  men  hohl  tbeir  in- 
l«ritMces;  nod  tfaerefore  if  a  nunipeakofes* 
cn^e  fenerally,  it  is  uudentood,  as  Littleton 
vbterv^  tect.  99,  of  the  inceruin  escuaie, 
wUch  b  a  knight'e  servioe  leouie,  for  the  ae- 
Ince  of  tbe  reum,  by  the  body  a^  the  tenant 
iiiiineofwar,aBdpotorccttaioetCusge,  which 
(irtth  only  a  contribucipn  Id  nwoey,  aod  no/ 

Aodifa  Statateapeak.of  the  Kinc'eCoiutt 
nfKecordfit  i«mew)toolyof  tbe  four  at  West- 
ninnei  by  way  of  excellency,  Cob^s  6  Rep. 
SO,  Grc|p>iy's  case.  So  the  Canonisti  by  Ihe 
^unmrnDnication  umply  spoken,  do  intend 
die  greaiei  EicomnniDicaiinn.     And  the  E«i- 

Cin  hii  Institntions  laiih,  Thnl  iLe  Civil 
bang  spoken  generally,  .is  meant  of  tbe 
Civil  Law  of  Eom^  though  the  Irw  of  erery 


city  u  a  civil  law ;  as  when  a  man  names  Tb« 
Poet,  the  Greeiaos  underaund  lloioer,  the  \j^ 
liniits,  VirgU. 

9.  Admit  '  per-  lef^eni  terrs  '  extend  to  all 
tbe  laws  of  tbe  land,  yet  a  mnQ  mast  iiot  ba 
committed  by  any  of  them,  but  by  the  due  pro-' 
c^edings  that  are  evcuted  by  those  laws,  aud 
iqioa  a  cause  declared. 

Again,  it  was  uiged.  That  the  king  was  not 
bound  to  express  a  cause  of  impriioument,  be- 
caose  ibere  luay  be  in  it  matter  of  state,  not  fie 
to  be  revealed  for  a  tioie,  lest  the  confederate* 
thereupon  make  means  to  escape  tbe  hxiidB  of 
justice.  And  therefore  ilie  Statutes  cannot  be 
intended  to  restrain  all  can^mitments,  unless  % 
cause  be  etpressed  ;  tor  that  it  would  be  very 
inconvement  aud  dangeroul  tn  the  state,  tq 
pubiiib  tb«  cause  at  tbe  vcrv  first. 

Uereaiito  it  was  readied  by  the  Commonii 
lliat  all '  danger  and  inconveiiience  may  b# 
avoided  by  declaring  a  general  cause,  a)  fiir 
treason,  lu^icion  of  treason,  misprision  of 
treason,  or  feloi^r,  without  specifying  the  par- 
ticularj  which  can  ^ive  no  greater  light  to  a 
coniedcfate,  than  wdl  be  conjectured  by  the  - 
very  apprehension  upon  the  Jinpiisoilnicne,  if 
nocliing  at  all  were  expressed. 

It  wa»  furilter  alledg^ed.  That  there  was  n 
kind  of  contradiction  in  the  position  of  the 
CtimoiDiis,  when  (hey  say,  a  party  committed 
without  a  cause  shewed,  oqght  to  ba  delivered 
or  bailed;  bailing  being  a  kind  of  iraprisoo- 
ment;  dtiivfery  a  total  freeing. 

To  tbis  it  hath  been  antwered,  that  it  hath 
4ways  been  the  discretion  of  the  Judges,  to 
give  so  much  Teq>«ct  to  a  commitmefit  by  tb« 
command  of  the  King  or  the  privy-council, 
(which  are  ever  intended  to  be  dune  in  juM 
and  weighty  caotes)  that  they  wiil  not  presently 
set  them  iree,  but  bail  then)  to  answer  wliat 
shall  be  objected  against  tbero  oti  bis  mnjesty'a 
behalf  J  but  if  any  other  inferior  o£c^  do  com- 
mit a  muQ  withoDt  shewing  cause,  tbey  do  in- 
stantly  deliver  him,  as  bavine  n?  cause  to  ex- 
pect their  leisure.  So  the  ildivery  is  applied 
to  an  iitmrisonment  by  the  coromaad  of  soniA 
iqean  minister  of  justice ;  bailing,  when  it  is 
done  by  the  camnund  of  tbe  king  or  hit 
couaqil. 

It  was  aigoed  bv  Mr.  Attwney,  tl»t  bailing 
was  a  grace  and  fsvaur  uf  a  court  of  justice, 
and  that  they  may  refuse  to  da  it. 

This  was  agreed  to  be  true  in  diveia  ca.4e«; 
as  where  the  causa  appears  to  be  For  Felony,  or 
other  crhne*  eiprewed,  for  that  there  is  an- 
other way  to  discharge  them  in  lonie  convent- 
mt  time  by  their  trial;  and  yet  in  these  cnse^ 
tlw  constant  practice  baih  been  anciently  and 
modemly  to  bail  men :  bat  wbere  no  cause  of 
the  imprisonment  is  returned,  but  the  oommand 
of  the  king,  there  is  no  nay  to  deliver  such 
person  by  trial  or  otherwise,  but  that  of  the 
Habeas  Corpus.  And  if  they  sliould  be  ihea 
remanded,  lliey  might  be  perpetually  impriwQ- 
ed,  without  any  reiudy  at  all;  and  consequently 
a  man  that  had  conimitled  no  olfence,  might 
beiuaworte  case   ihano^gteai  ogesder;  foe 


I5S]  STTATE  TRIALS,  3Chaw,mL  I«2a.— i 


nltaingio  [160 


th«  titter  should  have  «n  ordinarr  trial  lo 
dischnrge  him,  tha  olber  ihould  otvtt  be  de- 
It  was  farther  Mid,  that  though  the  ttituR 
orWe^tmiDster  1.  c.  15,  be  a  tiatute  which  hr 
waj'  of  proiitioD  did  extend  odI;  to  the  sheriff, 
jret  ttie  recital  of  lliat  statute  ttiuching  the  four 
cases,  nharein  a  inaa  was  noc  replevisble  nt 
the  comoiDn  law,  nnmelj,  tliote  that  were  com- 
mitted for  ihe  death  oF  a  man,  by  the  cotamand 
of  the  king,  or  of  bii  juiiicei,  or  for  the  forest; 
did  declare  that  the  justices  could  not  bail  sutUi 
B  one,  and  that  repleviable  and  bailable  were 
•jmonimous  or  all  one:  and  that  Stamford,  a 
judge  of  great  aothoritj,  dodi  expound  it  ac- 
cordingly (Slaro.  pi.  Cor.  7i.)  and  that  neither 
the  statuia  nor  he  say  *  repleviable  by  the  iheriff,' 
but  geoerallj  '  withuut  restraint;'  and  that  if 
the  chief  justice  commits  a  man,  he  is'not 
be  iDlarged  by  an;  other  court,  as  appeareth 
the  Register. 

To  this  it  was  answered,  1.  That  the  recil 
of  tlie  body  of  the  statute,  relateth  to  the  sheriff 
unlv,  as  appeareth  by  the  very  wards.  S,  That 
repleviable  it  to  the  sherilT,  for  that  the  word 
imports  no  more ;  but  a  man  committed  bv  tiie 
Chief  Justice,  is  bnilable  by  the  couit  of  King's- 
Bench.  3.  That  Stamford  meaneth  all  6F  the 
sheriff,  or  at  least  he  hath  not  sufficiently  ex- 
pressed that  he  intended  the  justices.  4.'ltwas 
denied  that  Tepleriable  and  bailable  were  the 
■atne,  for  they  differ  in  respect  of  the  place 
wltere  tliey  are  used,  bail  being  in  the  Kiii^s 
Court  iifKecortl,  repletisMe  before  the  sheriWi 
and  they  are  of  sereral  natures,  repleviable  be- 
ing a  letting  at  larfte  upon  sureties,  bailing  be- 
ing when  one  '  traditur  in  balltom,'  the  bail  are 
his  ganlen,  and  may  imprison  him,  and  thall 
suffer  body  for  b<>dy  ;  whicb  is  not  true  of  re- 
plerying  by  sureties:  and  bail  difFereth  from 
matopriie  in  this,  thnt  mainprice  is  an  under- 
taking in  a  sum  certAiD,  bailing  is  to  answer  the 
condEmnatioii  in  civil  causes,  and  in  criminni, 
body  for  body. 

Im  reasons  and  authorities  in  the  Erst  Con- 
ference were  then  renewed,  and  no  eiceptions 
taken  to  any,  snve  that  in  !3  Hen.  6,  it  dnth 
not  appear  mat  the  coimnaod  of  the  king  was 
by  bk  mouth,  which  must  be  intended,  or  by 
his  council,  whit^  is  all  one,  as  is  observed  by 
Stamford ;  for  the  two  words  are,  that  a  man  is 
not  repleviable  by  the  sheriff,  who  is  committed 
by  the  writ  or  the  cammandment  of  the  kiog. 

SI  Ed.  1,  Rut.  9,  dors,  wss  cited  bj  the 
King's  Counsel ;  hut  it  was  answered,  that  it 
concerned  the  sheriff  of  Leicestershire  only, 
and  not  the  power  of  the  judges.  33  Hen.  6, 
the  king's  Attorney  confessed,  was  nothing  to 
the  purpose  i  and  yet  that  beak  hath  been  usu- 
ally cited  by  those  tJiat  maintain  the  contrary 
to  die  declaration  of  the  commons.  And 
therefore  such  sudden  opinions  as  have  been 
»ven  thereupon,  are  not  to  be  regarded,  the 
found  ntion  facing. 

And  where  it  was  mid  that  the  French  of  36 
Ed.  3,  lloi.  Pari.  n.  9,wbiciic»nroceive  noan* 
■wer,  did  not  warrani  what  was  inferred  tbence ; 


hut  that  these  words,  <  sans  disturbance  met- 
'  tre,  ou  arrest  Faire,  et  le  centre  per  special 
'  mandement  Ou  en  autre  maoiere,'  must  be 
understood,  that  the  Statntei  sltould  be  put  in 
execution,  without  putting  disturbance,  or 
mfeking  artest  lo  tlie  contrary  by  special  coca-  , 
mand  of  iti  Other  manner;  the  commons  did 
utterly  deny  the  iiiterpretalion  given  by  tha 
Ling's  cooosel :  and  to  jostift  their  own  did 
appeal  to  all  men  that  uuJentood  French, 
And  upon  the  seven  statutes  did  conclude,  that 
their  declaration  remained  an  undoubted  trutb, 
nut  cautroUed  by  anything  swd  lo  the  contrary.' 

[The  Psoceeoihcs  acjiihst  toe  Eul  ob 
fiuFFota,  April  14,  l(i2fl.* 
Mr.  Kerion  acquainted  i  be  house,  thatth* 
earl  of  Sufelk  had  said  to  some  gentlemen, 
'  That  Mr.  Selden  had  razed  a  Record,  and 
deserved  to  be  banged,  for  going  about  to  set 


I  betwi 


And  being  demanded  U 

spoken,  he  was  unwilling   to  name  a..., 

u^ti  the  question  it  was  resolved  he  should  no- 
minate him.  He  then  named  sir  John  Strang- 
ways ;  who  was  unwilling  to  speak  what  he  had 
heard  from  the  earl :  hot  being  commanded  by 
the  bouse,  and  resolved  upon  the  question,  be 
confessed, 

That  upon  Saturday  last,  he  being  in  the 
Committre-Chember  of  the  lords,  the  earl  of 
Suffolk  called  to  him,  and  sfaid,  <  ftir  Jobn,  will 
'  you  not  hang  Selden  ?"  To  whom  he  said.  For 
wW?  The eari  replied,'  ByGodhe  hathraied 
'  a  Record,  and  deserves  to  be  hanged  f .' 

This  the  House  of  Commons  took  as  a  great 
injury  done  to  the  whole  house,  Mr.  Seldea 
beinzemployed  by  them  in  the  Conference  with 
the  lonls  in  the  great  cause  conceroiog  the 
Liberty  of  the  Persons  of  the  Subjects. 

The  House  presently  sent  sir  Robert  Phillips 
with  a  Message  to  the  Lords  to  this  e^a;  he 
expressed  the  great  care  the  Commons  had 
upon  all  occasions  to  maintain  all  mutual  re- 
spect and  correspondency  brlwiit  hoth  houses : 
theo  he  informed  them  of  a  great  injury  done 
by  the  eari  of  Suffulk  to  the  whole  huu;e,  and 
lo  Mr.  Selden,  a  particular,  member  thereof. 


t  Mr.  Selden.  "  I  am  called  up  to  justify 
myself.  1  see  the  words  charge  me  to  bav« 
razed  Records.  I  hope  no  man  believes  1  ever 
did  it.  I  cannot  guess  what  this  lard  means. 
I  did  deliver  in  whole  copies  of  diven  Record* 
examined  fay  myself,  and  divert  other  gentle- 
men of  this  house,  lliese  I  delivered  in  to  th« 
lords  house;  and  tbe  Cleri  of  ^e  Ctdwd 
brought  in  the  Records  of  tbe  office  before  the 
lords :  I  desire  that  there  may  be  a  Message 
from  this  house  to  the  lords,  to  make  at  iho 
bar  there  a  Charge  against  tbe  lord  tbu  ^k« 
thus ;  and  I  hope  we  shall  have  justice."  Ex 
MSS.  Pymmii  in  Selden's  Lif^  in  hisWoAs, 
vol.    ,  p.  10, 


lit]  ,       ST4^TE  TlttALS,  S  Crabuu  L  IK*.— the  h^er^  tf  ih:  Sdjeet. 


[I5S 


who  by  ilwir  coiBiiMDd  bmd  been  emplojcd  iti 
lb<  late  CtiQf«Tsncc  oith  tbeir  lordibipa :  that 
du  bouse  wu  vnj  aenmble  ibereof,  ud  ac- 
conJing  to  fumm-  precerfenu,  made  tlieiii  tmlj 
to|(iauit«d  witfaii,  and  demanded  justice  agaiiul 
(be  earl  of  Suftilk.  lie  read  die  words,  Mying 
tkj  were  Kodken  to  tir  Joha  Straogmji,  a 
iMmber  ofuteir  bouie. 

After  a  short  u»j,  ihe  lordt  called  for  the 
■cntngeT,  to  whom  tbe  Lord-Keeper  gave  this 
as>ter;  be  U|iu6ed  ihe  peat  deiira  and  care 
of  their  loidshipi  to  maintaiD  and  increaM  (he 
anaipoadeaciu  betwitt  both  houses,  and  as 
1  taliiaoay  thereof  thej  bad  partly  taken  into 
ansklenlioD  the  chaise :  that  the  earl  of  Suf- 
bSk,  being  a  man  of  great  place  and  bODour, 
lad  vohuitarilj  proteKled  npon  his  honour  and 
ml,  ihat  there  passed  no  lucb  words  as  those 
ftooi  him  to  air  John  Slrangwajsi  and  the 
Loid-Ke^ieT  wished  that  Lheir  lordships  speedv 
onKcedings  in  this  business. might  testily  their 
Ikc  and  good-will  to  the  commoas  house. 

The  next  day  being  tbe  15[h  of  April,  tir 
Jolia  Strangvrays  made  a  Protestation  openly  io 
the  bouse,  wherein  he  avowed  that  (notH'ith- 
Aanding  the  Earl'i  denial)  be  did  speak  ihnw 
KHili  positively  unto  him,  and  would  maintaiB 
il  sDj  way  filling  a  member  of  that  bouse,  or  a 
{nitteman  of  honour. 

They  ordered  Chat  this  Protestation  should 
lie  entered  into  the , Journal- bnak,  and  that 
t  canunittee  should  take  inio  consideration 
*bt  was  fit  tbr  the  bouse  to  pmceed  to,  for 
tke  justification  of  sir  John  Stmngway),  and 
•hat  was  fitting  Io  be  done  in  ihis  case,  and  to 
tiuoiQe  witoeasei  of  the  proof  of  the  words. 

Upon  the  ITtb.day  sir  Jolm  Elliot  reported 
■kt  tlie  (ommitlee  bad  done  ;  That  they  had 
teat  for  and  examined  git  Christ.  Nevil ;  who 
irltled,  that  upon  Saturday  being  in  the  Lords 
Csaunittce-Ctiainber,  the  earl  of  Sufiblk  said 
tbu)  to  him :  Mr.  Attorney  hath  cleared  the 
buuDcu,  and  hnih  made  the  cause  plain  on  tbe 
king's  side  ;  and  liirther  said,  Mr.  Selden  halh 
Tued  a  Record,  and  hath  deserved  to  be  faaoe- 
cd,  and  tbe  Imter  bouse  should  do  well  to  Join 
vith  ilie  higher  in  a  petition  to  the  king  to  hanj| 
Iud;  snd  added  as  a  reason,  for  Mr.  Selden 
mit  about,  and  took  a  course  to  divide  the 
i'lrn  Erom  his  people,  or  words  to  that  effect. 
And  being  asked,  whether  be  oonceived  that 
ihuuwDrds  of  dividing  tbe  bing  from  his  people, 
U  relation  to  the  wl.ole  and  general  action  of 
Ur.  Selden  before  the  lards,  or  to  the  particular 
i>f  raiitig  a  record  ?  lie  conceived  ihey  were 
rderred  to  Ehe  general  action. 

Tbej  had  examined  one  Mr.  Littleton,  wbo 
raafbud  be  heard  the  earl  of  Suffolk  si»ak  to 

XtJeman,  whom  he  knew  not,  words  to  this 
,  viz.  That  he  would  not  be  in  Mr.  Sel- 
den's  coat  for  10,0001.  and  that  Mr.  Selden 
■loerved  lo  be  hanged. 

The  second  part  of  tbis  report  concerned  the 
jniticukr  of  sir  John  Strangways,  wherein 
■Ixngh  tiie  committee  found  no  witncs;  to  prove 
^  words  spoken  to  sir  John  Strangways,  yet 
■we  atte  aunj  circuiiutaocea  whi^  peisand- 


ed  tbeiD  of  tbe  truth  thereof.  1.  That  tlw 
same  words  in  the  same  syllable!  were  spoken 
to  sir  Chrikt.  Nevil,  and  that  the  earl  as  b« 
called  to  hioi  sir  John  Strangways,  so  he  called 
to  him  sir  Christ.  Nevil.  8.  That  the  carl  of 
Suffolk  called  sirJohn  Strangways  to  him,  end 
spake  to  him,  was  proved  by  sir  Geoige  Fane^ 
and  sir  Alei.  Si.  John,  at  which  time  tbe  earl 
seemed  fiill  of  that  which  he  delivered,  3. 
That  sir  John  Strangways  instantly  after  hie 
discourse  with  the  earl  of  Suffolk  went  to  tbe 
esu'l  of  Hertford  and  deliveied  him  the  paawges 
betwixt  them,  being  ibe  same  related  in  the 
house.  4.  From  tbe  nnwilliiigness  of  sir  John 
Stranfjwnys,  thouah  called  upon  by  iba  house, 
to  testily  against  (Tie  carl,  till  it  was  resolved  by 
question  be  should  do  it :  firom  a  probability, 
that  had  not  these  words  beeo  spoken  to  biin- 
iieLF,  it  is  like  be  would  have  produced  tir  Christ. 
Nevil,  from  whom  be  also  beard  the  same.  5, 
From  the  worth  of  the  gendemnn,  and  bis  in-  , 
genoous  Protestation  in  the  bonse,  I'hat  be 
was  ready  to  jusiify  (he  truth  of  »hat  be  said 
in  any  course  the  bouse  should  think  meet,  or 
was  fit  for  a  gentleman  of  honour. 

Hereupon  the  bouse  resolved  upon  tbe  ques- 


dalous  imputation  upon  Mr.  Sekleu,  a  member 
of  tbe  house,  being  employed  in  the  service  of 
the  house,  and  therein  upon  the  whole  boua* 
of  commo[is.  3.  That  tliis  house,  upon  due 
examination,  is  fully  satisfied  that  tir  John 
Strangwavs  (notwithstanding  the  earl  of  Suf- 
folk's den^ial)  liaib  affirmed  nothing  but  what  ia 
most  true  and  certain.  3.  T'lat  tliese. particu- 
lars and  additions  be  Bgain  presented  to  tbe 
lords,  and  tlie  earl  of  Suffolk  be  newly  charged 
at  tbe  bar,  and  the  lords  desired  to  proceed  in 


,  being  against  the  hiiuse  of  commons, 
doth  deserve." 

Sir  John  Elliot  was  sent  with  a  Message  to 
the  lords;  who  after  a  while  returned  thia 
Answer,  That  they  had  t^en  the  Meisnge  into 
consi deration,  and  wouM  further  take  it  into 
due  consultation,  and  in  convenient  time 
would  return  an  answer  fay  metsen^rs  of  tb«r 
own.  But  what  woi  done  in  this  affair  doea 
not  appear.] 

Mr.  Noye,  ad  the  16th  of  April,  offered  an 
Answer  to  tbe  inconveniencies  presented  by 
Mr.  Attorney,  which  were  four  in  number. 

First,  where  it  was  objected,  that  it  was  in* 
convenient  to  express  the  cause,  for  fear  of  di- 
vulging the  '  Atcana  imperii,'  for  hereby  all 
may  be  discovered,  and  ahundance  of  tmiton 
never  brought  to  justice.  To  this  (hat  learned 
man  aosw^ed,  That  tbe  Judges  by  the  inten- 
tion of  tbe  law  are  the  king's  counsel,  and 
the  secsets  may  safely  be  committed  to  all  or 
some  of  them,  who  might  advise  whether  they 
will  bail  him :  and  here  is  no  danger  to  kin^, 
or  Eubjecta ;   fi>r  tbeir  oath  will  not  pennit 


159]  STAlTliUALS,  ^'C«asus{.  iM6,'-^Pr«»taiigii»l'artiailmt»lk»glo  1%^ 


thoin  to  rereol  th*  •ocretBoftbakiig,  nary^ 
M  detain  tha  tul^tct  long,  if  by  law  he  beto 
be  Iwiled. 

SecondlT,  Pur  that  Bbjection  of  the  cliildren 
of  Odandl,  Ac  laid  tbis  for  a  ground,  that  the 
king  can  do  nn  wranc;  but  in  cam  of  eitreiae 
i»c«wity,  we  mint  yield  urnieumei  for  the  prO' 
wmiCioa  of  die  uaie,  '  obi  unins  daimwiD 
'SiilllaEe  pabliOH  (ependitur  :'  he  laid  tbara 
WM  no  truM  in  tic  diildrcn  of  traitor),  no 
moDg  dme  if  liwy  did  '  tabefocere,'  or  '  mar- 

*  ceac«re  in  ewcere.'  It  it  tJie  nme  caM  of 
Beoenity,  M  wbca  tu  svi»d  the  barniogofa 
MwQ,  lie  ar*  forced  to  pull  down  an  bonett 
■nan'*  haute,  or  tn  compel  a  man  to  dnell  by 
the  seK-«id«  far  dclience  nr  fimitnde.  Yet  (M 
king  can  do  no  tmiiig,  fur  '  potentia  jaris  est 
<  noD  injuria  :'  trgo  the  act  of  the  king,  tbougli 
to  tfac  Hrang  of  another,  i«  by  the  law  miule  no 
wrong  1  at  if  be  (Mnmauded  a  petH>  to  be 
kept  in  priton,  yet  he  ii  recponiible  for  bit 
wroRR  ■.  he  quoted  a  book  43. 6.  Ah.  Port. 

Thirdly,  The  iAuaace  made  of  WeHKiinst. 
fir»C  he  said  (here  wm  a  great  diOkrence  be- 
t»een  ihota  three.  Mainprise,  Bail,  and  He- 
Verin.  The  StatuU  tavs,  a  man  cannot  be 
replevied :  ergo,  not  bailed  non  ugmtttr. 
Hainpriie  w  under  pain ;  bail  it  body  for 
body  :  btit  no  pain  ia  ever  in  court  to  be  do- 
dared,  Qnlest  the  party  appears.  Replevin  is 
neither  by  aurety  nor   bail;  and  Replevin   it 

Fourthly,  Where  it  is  said  that  bail  it  M  gr»' 
(M,  h*  nntwera,  That  if  the  prisoner  comet  to 
Habeas  Corpus,  then  it  is  not  tx  gralUi,  yet  the 
court  may  advise,  but  mark  the  vofda  '  ad 
'  tabjiciendum  et  recipiendum  pront  curia  con- 
'  Bideraverit.'  Now  it  is  imponible  the  Jodga 
Ihould  do  to,  if  no  caute  be  ex|iFened  ;  fbr  if 
Ihej  know  nO  canse,  be  may  bring  ihe  first, 
tecond,  third,  and  fiiurth  Hnbeat  Corpus,  and 
•D  infinite  till  he  find  himself  a  prrpeldal  pri- 
toner-.  so  that  no  eaiBe  expreiscd,  it  worse  fbr 
a  man  than  the  greatest  cause  or  vlllkiny  that 
can  beimagiued.  And  tbot  far  proceeded  that 
learned  gentlfnrao. 

Mr.  Qhmite  soid,  That  by  l«Toar  of  the 
boose  of  commons  he  had  liberty  to  i^Wnk,  if 
Oppormoity  were  offered.  He-applied  his  an- 
swer 10  one  paiticular  of  Mr.  Attorney,  who 
ftssiened  to  the  king  four  great  tnutt:  1.  War, 
S.  Coini,  3.  Denizens,  4.  Pardons;  it  is  as- 
■•nied  to,  cJmt  the  king  it  inuted  with  all  tlicM 
fo«r  legal  prerogativH,  but  the  a^ment  (bl- 
lowaih  not,  the  king  is  tmsted  with  many 
premgaclvcs ;  erga,  in  thit  '  non  aeqaitur  non 

*  est  sufficieni  enumsmtio  pnrtiuni.'  He  M'ld 
he  could  nmwer  these  particulars  with  iwo 
rulea,  whereof  tbe  lirsl  should  wipe  off  the 
irst  and  tbe  Mcond;  and  the  other,  the  third 
and  fourth. 

The  first  rutris  this  :  there  is  no  fear  of  trust- 
■Dg  the  king  with  any  thing,  but  the  fear  nf  ill 
eonnsel  ;  the  king  nay  easily  there  be  trusted, 
where  ill  counsel  doth  not  engage  both  tbe 
king  tod  Mbjeett,  as  it  doth  in  matter  of  war 


and  coin.  If  he  mitcairy  in  tbe  wars,  it  u  nof 
always  '  plectuptor  archivi,'  but  he  (intrtt 
eqnJly  with  the  p««ple;  if  be  abate  bis  coiti, 
he  Itiseth  moic  than  any  of  liii  people ;  trm 
he  may  tafkly  be  trosted  with  the  flowers  of  m 

The  teooad  nde  ht  begkn  was  this,  WbeB 
the  king  ii  trusted  to  confer  grace,  it  is  olife 
thing;  but  when  be  it  tnHI^  to  infer  an  in- 
jury, it  it  anodier  matter.  The  fonnto  powet 
cannot,  by  miBconnMifitig,  be  brought  to  pi«- 
jodtce  another,  the  latter 'may ;  if  the  king  par^ 
doneth  a  eiilty  taan,)iepunjtl)eth  not  a  {{ood 
satqect;  if  hfe^CncEen  itci'ersomanyatMinzVrS', 
it  it  bat  dkwBim  (tne  injuria  :  we  eUnw  fain  i 
liberty  to  confer  grace,  hot  not  without  cmxb 
to  iDRr  pnniahmcnt ;  and  iRdeed  he  cMtnotdo 
injoiy;  fbrif he  cnnnnnnd  lodoaman  nrotifL 
tbie  command  Is  void,  '  vt  actor  fit  aiAhur,'  aM 
tbe  actor  becMBes  tlip  wrong  doer.  Tlierelbi^ 
the  biiig  may  safely  be  trosted  with  war,  coii^ 
denizens,  and  pardon i,  but  not  with  a  power  to 
impritOD  withunt  exuretnion  of  cause,  or  limi- 
Mtionof  time;  as  the  pott  telb  in,  bect»iS« 
'  libeitae  polius  auro.' 

After  time  debates,  the  bonsfc  of  pimt 
called  upon  the  Jui^«s  to  answer  the  Cnai^ 
•f  tbe  house  of  commoin,  for  their  Jodgment 
on  ih«  Habeas  Coipus,  brought  in  Mich,  tfrm 
by  the  Gendemen  imprisoned  fbf  refusing  to 
taibfcrib«  to  tbt  Loan. 

The  AvswEK  of  ilie  Judge*  for  matter  of  Act 
upon  the  Habeas  Corpus,  9 1  April. 

Tbe  Chief-Jytlire  taith,  They  are  piepar«d 
to  obev  our  command,  but  they  deurfa  to  hk 
adviied  by  as,  whether  tbey  being  iworn  upon 
penalty  of  forfeiting  body,  lands,,  and  goods, 
mto  the  king's  hands,  to  give  an  account  ta  fdm, 
mat  wfllioHt  Warrant  do  ihis. 

the  Dtikt  said,  lie  had  acquainted  the  king 
.with  the  business,  and  for  aught  he  knew  he 
is  well  contwit  Iberewith ;  but  for  better  assup. 
ance,  he  t(ath  seDt  his  brother  of  Anglesey  tb 
know  his  pleasure. 

DetomUre.  tfa  camphint  be  made  by* 
meat!  Inan  Bgainst  the  greatest  officer  in  ttib 
place,  he  it  to  gite  tn  account  of  his  doings  tt> 
this  boast. 

Bishop  of  Uneoln.  Tliii  motrun  proceeded 
from  him,  atid  su  took  it  for  clear,  that  there 
wat  an  appeal  from  the  Chancery  to  a  higfan 
court  thm  the  King's-bertch,  and  that  court 
bath  evn  given  an  account  oftbeir  doings. 

The  kinl  Say.  He  wondered  tbere  shotM 
be  any  qneatioo  made  of  this  bustness,  becaoie 
in  his  opinion,  tbn  being  tbe  higbest  court,  did 
admit  of  no  appeal. 

The  Prtiident.  Tbe  Judges  did  not  do  ibh 
by  way  of  appeal,  hot  as  themost  Comolon  wny 
n,  this  bein 


ftw  litem. 


a  being  a.  matter  c 


mJng  tb* 


Lord  Sty.  If  they 
■elves,  we  most  take 
point  of  our  privilege. 

The  Duke.  This  was  not  done  by  ihe  J( 
as  feariag  to  aoiWer,  but  lespect  to  Q/t 


ffi? 


161)  STATE  TSIAIS,  SChablesI.  IGn.— the  Liberty  of  the  Suhjtci. 


[I6t 


And  BOW  hh  brother  WB3   cnrne  xith  ans' 
fimD  the  kin^  thnt  thejr  might  proceed. 

Older  WAS  tai-ea  diat  tbis  pauage  should 
hccnteicd  into  the  Jnuniiil-Baok. 

And  3o  Judge  Wbipioce  spnke. 
My  lonh,  we  arc  b_T  your  Bppointriieiit  h 
ittdj  lo  dear  itaj  aspersion  of  (he  liouse 
rammons  in  iheir  lale  presentment  upon  the 
Kin^Vbcnch,  that  t)ie  .Subject  nat  wounded  in 
tb( judgment  there  lately  p^iven.  IT  such  a 
tbing  vtrc,  my  ivrds,  your  lordships,  not  they, 
iart  the  power  to  qaestion  and  judge  the  same. 
Bin,  my  tordii,  I  say  there  was  no  Jodgment 
ptta,  wbereby  either  ibe  prerogative  might  be 
oilargeil,  or  tbe  Higiit  of  the  Subject  trenched 
upon.  It  ii  tme,  niy  lonls,  in  MicbnelnsBi 
tenD  last,  fonr  gentlemen  pelitioned  for  an 
Habeas  Corpus,  which  they  obtained,  and 
cannjel  waa  assiened  unto  them ;  the  return 
was  '  per  speciale  mandatutn  domini  regis,' 
which  likewise  was  made  unto  us  under  the 
budt  of  18  privy  counsellors.  Now,  niy  lord;, 
if  we  bad  delivered  them  presently  upon  this,  it 
Bust  have  been,  because  the  king  did  nat  shew 
cfae  came,  wherein  we  should  hnve  judged  the 
tiDf  had  dohe  wrnn^;  and  this  is  beyond  our 
bmledgr.  Tor  be  might  hure  committed  them 
fer  other  matter^  than  we  could  have  imagined. 
But  tbey  ntigjlit  say,  thu»they  laight  have  beeo 
Irpi  in  prison  all  their  days  ;  I  tunwer  no,  but 
wedid  remit  them,  that  we  might  better  advise 
of  the  inatter  :  and  ihey  the  ne«  day  might 
hne  had  a  new  writ,  if  they  had  pleased.  But 
tbtj  say,  we  ought  not  to  have  denied  bail.  I 
iBiwer,  if  we  liad  done  so,  it  must  needs  have 
TcAerted  upon  the  king,  that  he  had  unjustly 
inpritoned  them.  And  it  appears  in  Dyer, 
i  tih.  that  divers  gentlemen  being  committed, 
■nd  requiring  Habeas  Corpos,  some  were 
btilnl,  others  remitted  -.  whereby  it  appeon, 
tniich  bleft  to  the  discretion  of  the  judges. 

For  that  which  troubled  so  mach,  <  remrt- 
'  tilur  qunusque,'  this,  my  lords,  was  only  (as  I 
nid  before)  to  take  time  what  to  do  ;  and 
whereas  they  will  h»ve  a  differcice  betwixt 
'  temittitur'  and  '  remittitur  quousque,'  ray 
lordi,  I  confess  I  can  find  none  ;  but  these  are 
M»  inventions  to  trouble  old  Records.  And 
Win,  my  lonl*,  we  have  dealt  with  know- 
ngfand  understanding;  for  had  we  given  a 
Jingment,  the  parly  must  thereopoo  haie 
ntai.  Every  judgment  must  come  lo  an 
*«  iTi  matter  of  ftict,  or  demur  in  point  of 
Itw;  here  is  neither,  therefore  do  judgment. 

Ai  to  endeavouring  to  have  a  Judgment  en- 
••"d;  it  is  true,  Mr,  Attorney  pressed  the 
**uie  for  his  master's  service;  but  we  being 
Worn  to  db  right  betwirt  ihe  king  and  his  lub- 
JMts,  commanded  the  clerk  to  make  no  entry, 
but  according  to  the  oJd  form;  and  the  rule 
*M  pven  by  the  Chief-Justice  alooc.     I  have 

Sit  my  time  In  this  coun,  and  I  spqak  confi- 
'ly.  I  did    never  see   nor   know    by    any 
"eord,  that  opon  snch  a  return  as  this,  a  man 
*»  hailed,  the  king  not  fir«  consohed  irith  in 
"uacMeaitbis. 
»0I~  III. 


The  Commons  House  do  not  know  what 
letters  and  commands  we  received,  for  these 
remain  in  our  court,  and  were  not  viewed  by 
them :  for  the  rest  of  the  matters  presented  by 
the  boose  of  commons,  they  were  not  in  ajpin- 
tion  before  us,  whether  ibe  k^rig  may  commit, 
and  how  long  he  may  detain  a  man  committed. 
Therefore  having  answered  so  much  ns  con- 
cernelh  us,  1  desire  yunr  lorilships  good  con- 
of  what  hath  been  saiil. 


Judge  Jotia  said.  He  was  here  to  deliver 
before  us,  what  Judgment  weis  given  before 
them  concerning  the  Habeas  Corpus:  he  lin- 
swered.  No  Judgment  was  given,  and  tbe  mat- 
ter of  fact  was  such  as  my  brother  dehvered 
onto  you  yesterday.  These  four  gentlemen 
were  committed  lo  the  Flyer,  Gate-house,  and 
marshal  of  the  honshold.  Foar  returns  were 
made  upon  the  writs,  and  every  one  of  them 
bad  a  connsetlor  appninied,  wLo  bad  copies  of 
the  returns.  A  rule  was  grunted,  their  council 
heard,  and  exception  taken  to  the  return,  be- 
cause it  did  not  sben  cause  of  their  caption. 

These  were  ef  no  force,  in  tlic  opinion  of  the 
Judges.  The  next  exception  was,  because  no 
cause  oftbeir  commitment  was  shewed,  which 
tbe  judges  held  to  be  all  one  in  point  of  law. 
Tbtn,  my  lords,  they  alledged  many  Precedents 
and  Statutes  of  themselves,  which  tbe  king's 
attoniev  ansnered,  That  persons  commit,ted 
by  the  king,  or  council,  were  never  bailed,  hut 
his  pleBBure  was  first  knonn. 

We  agreed  at  the  Chamber  of  tbe  Chiefl- 
Justice,  that  all  tiie  Statutes  alled^ed  are  ia 
force  ;  but  whether  we  should  bail  them  of  M, 
was  the  question,  therefore  we  remitted  them 
giimi$^Bt.  After  which  Mr.  Attorney  required 
~  Judgment  might  be  entered:  I  commanded 
le  clerk,  he  should  uol 
I  be  done,  because  w 
ised. 

But  some  wilt  say,  our  act  is  otherwise :  I 
nswer,  No ;  for  we  have  done  no  mora  tbaa 
re  do  upon  an  ordinary  writ,  when  itc  purpose  ' 
0  be  better  advised,  and  that  was  only  an  in- 
terlocutory order.  But,  my  lords,  put  the  case 
~  Habeas' Corpus  should  he  granted  for  one 
at  is  comtnilted  by  ijie  house  oFcommons, 
would  they  (think  you]  take  it  well  be  should 
be  bailed  at  his  first  coming  to  the  court  P  I 
tliink  they  would  not,  and  I  think  the  king 
would  have  done  su  in  this  case.  Now,  my 
lords,  (here  is  apcliiion  of  right,  andopelitioD 
of  grace:  to  be  bailed,  is  a  Inatter  uf^  grace ; 
therefore  if  A  man  be  brought  upon  an  Habeas 
Corpus,  and  not  bailed,  he  cannot  say  the 
court  hath  done  him  any  wiong.  I  have  now 
served  seven  years  a  Judge  in  tlris  court,  and 
my  conscience  beareth  me  witness,  that  I  hava 
not  wronged  the  same  ;  t  b:ive  been  thought 
sotnctinic)  loo  forward  for  the  Liberty  of  tbe 
Subject.  1  am  myself  Liber  Harno,  my  ances- 
tors gave  their  voice  for  Magns  Chatta.  I 
enjiiy  that  hou'ie  still,  which  they  did  ;  I  do  not 
now  mean  to  draw  God's  wrath  upoli  my  pni- 
terityj  and  therefore  I  Aitl  neither  atfvdDcs 


IflS]  STA'^TRIAl^,  SCaAMJSsI,  IGa^.—I'roceedingt  in  Paflimnau  relating  to  [16* 

lIiB  king's  prerogatiTe,  nor  lesen  the  Li>irrty  of 
the  Subject,  U>  ibe  duuer  of  ei\her  kiiiu  or 
peuidt.  Tliu  is  mj  prote^oa  befure  (iudoad 
ifour  lordahip*. 

Judge  iMMtridge  inid,  It  is  no  more  (il  for 
«  judg*  ^  decltoe  to  give  an  account  of  his 
doings,  limit  for  a  Christian  o(  hia  bitli.  God 
Liioweth.  1  have  endenvourcd  alwnji  tu  keep  it 
good  cno(ci«nce;  for  a  troubled  one,  who  cnn 
Gear?  The  kingduoi  liulds  of  none  but  God, 
and  Judgments  do  not  puss  privntely  in<JlBlli- 
ben,  but  public);  in  court,  where  ev«ry  one 
mny  liear,  which  causeth  judgnem  to  be  given 
wirli  maturity.  Your  liirdsliips  have  licanl  the 
particulars  delivered  b;  my  brethren.  Low  tbat 
counsel  being  assigned  to  those  four  Gentle- 
men, in  the  latterend  of  Michaelmas  Tmnllieir 
cause  received  bearing;  and  upon  cpnside  ration 
of  tiie  Slatuces  and  necords,  we  found  some  of 

tbcm  tn  be  according  to  {Le  good  old  Uw.of 

Blugns  Cbnrta  :  but  we  ilioutht,  that  the;  di ' 
'    tiuc  come  so  close  lo  this  case,  as  tliat  ba 

should  be  thereupon  presently  granled.     Mj 

lords,  tie  Ilabena  Corpus  consists  of  three  parts, 

the  VVtff,  tlie  lUlum  upon  the  Writ  or  »che- 

dute,  and  tile  Entry  or  wile  reciting  the  Habeas 

Corpus;   and  the  Heturn,  together  wiih  the 

opinion  of  the  cuuit,  dther  a  '  remittitur,'  or 

<  iraditur  iii  bnlltuni.'    In  this  case  a  remittitur 

mak  i^rrnteil,  wliich  we  did,  that  we  might  take 

bf^ltor  iulvisc'inent  upon  the  case,  nnd  upon  the 

remiiiit  :r  (riiy  lords)  they  mti;bt  haie  had  a 

new  writ  (he  next  day;  and  !  wish  they  had, 

1iccii|t^e  il  umy  be  they  bad  seen  i^orc,  and  we 

hnd   been  ctised  of  a  great  liibour.    And,  my 


.  _  _  .  coiDimit.  Tberefora  jastly  we  think, 
we  delivered  the  interpretation  tberrof  to  that 
purpose :  for,  niy  lords,  Itt  terra  is  iiut  to  be 
found  in  this  stattite,  they  gave  me  no  etample, 
neitlier  was  there  any  caase  shewed  in  the  re- 
turn. A  precedent  (my  lords)  thnt  halhrun  in 
u  storm,  doth  uot  much  direct  us  in  point  of 
law,  and  recirds  are  the  best  testimonies.  Thosa 
precedents  iliey  brouglit  beiug  rend,  np  shewed 
iheui  Wiherciii  they  were  mistaken  ;  if  we  have 
erred, '  errimius  cum  patribus,'  and  they  can 
shew  no  precedent,  but  that  our  predecessors 
have  done  as  we  have  done,  somelimea  bailing, 
suinetimes  remitting,  sometimes  discharging. 
Vet  we  dn  uever  uuil  any  committed  by  the 
kiug,  or  his  council,  till  bis  pleasure  be  first 
known.  Thus  did  ihoLC.  J.Coke  in  lUy- 
ner's  cue.  They  say,  ihis  nould  lihvc  been 
done  if  the  king  bad  not  writren  ;  but  »liy  then 
Hits  the  letter  read  and  published, "and  kept; 
and  why  wag  the  tunit-cierk  &ent  carefully  to 
enquire  (because  the  letter  so  directed)  whether 
these  men  oQered  for  b^iil  were  Sabsidy  men  i 
The  letter  sheweth  also,  that  Beckwlth  was 
imitted  for  suspicion  of  being  acquninted 
1  Ibe  Gunpnwder-Trenson ;  but  no  proof 
being  produced,  tbe  king  kft  him  to  be  bailed. 
The  Earl  of  Wil 


pri.'!sed  an  entry,  we  all  straitly  charged  the 
der)(,  thtt  he  ibnuld  m»ke  no  other  entry  thao 
'  mcll  ns  uur  predecessors  \imI  usuall*  made  in 
like  C-neii  {nt\hk dilfi-reiice (my  hirJa) betwiit 
•  rraii'titur'  and  '  reiiiiititur  iiuosque,'  I  could 
nev-r  ;;3t  Gnd  any.  I  hnve  now  sat  in  this 
cou'ithttren  years,  nnd  1  shuuld  know  soipe- 
iliing ;  surely,  if  1  hud  gone  in  a  mill  so  long, 
some  dust  would  cleave  to  my  clonths.  I  am 
old,  and  have  one  foot  in  the  grave,  iberefore 
r  M\  look  to  the  better  part,  as  near  as  1  can 
But  '  oinnia  habere  iu  memoria,  et  iu  duU 
''  errare,  divinum  putius  est  quam  humanum.' 

L.  C.J.  sir  Nkhoki  H^dr,  said.  He  ;hould 
not  speak  with  confidence,  unlets  he  might 
itanil  neht  in  the  opinion  of  the  bouse ;  " "  ' 
protested  what  he  ipake  the  day  before, 
not  said  by  him  with  aiiy  purpose  to  treoch 
upon  the  privihties  of  thit  liouse,  but  oi 
that  respect  which  by  his  place  he  thought  he 
owed  to  tbe  king.  He  said,  cnncenung  the 
point  he  was  to  s|^ak  of,  that  he  would  not 
trouble  the  lords  ivith  tbinra  fnrnierly  repeated, 
wherein  be  concurred  with  bis  brethren.  He  : 
•aid,  if  it  were  true  ibe  king  might  not  commit, 
they  hud  done  wrong  in  not  partly  delitering; 
for,  my  lord^raaith  lie),  tlieseStatules-nnd  good 
bws  beinii;  ajl  in  force,  we  meant  not  to  trench 
upon  itny  of  ibem;  most  of  tliem  lieing  com- 
m^'ntnries  upon  Alat-na  ChaHa :  but  I  know 
not  any  statute  that  goeth  su  likr,  tbat  the  king 


■  Speech,  2\  April 

My  lords,  I  will  observe  something  out  of 
e  law  wherein  this  Liberty  of  the  Subject's 
person  is  fountlcd,  and  some  things  out  of  pre- 
cedents which  have  becu  alledged.  For  tbe 
law  of  Magna  Cbarta,  and  the  rest  concerning 
these  points,  they  are  ackuowledged  by  all  lo 
be  of  force}  and  tbat  they  were  to  secure  ibe 
subjects  from  wrongful  imprisoument,  as  well, 
or  i'a>hcr  more  concerning  tbe  king,  than  tlo 
suinecL  Why  tlien,  besides  tbe  Grand  Charter, 
and  those  six  other  acts  of  parlinmt^nt,  Jn  the 
very  point,  we  know  thnt  iuagna  Charta  bath 
beeu  at  least  tliirty  times  confirmed  ;  so  thnt 
upon  the  matter  we  have  six  or  seven-and-thirtj 
act)  of  purlioin^it  to  confirm  this  Liberty,  aL- 
tliaugh  itwfs  made  maticg^  of  derision  the  other 
day  in  this  houw. 

One  is  that  of  SG  E.  3,  n.  9.  and  nnolher  in 
the  same  year,  n.  IQ.  nut  printed,  tjut  yet  ac 
good  as  those  that  are;  and  that  of  49  £.  3. 
cap.  S.  so  express  in  tjie  point,  eq>ecinlly  the 
Petition  of  tlie  Commons,  that  vear^  whicb 
wns  read  by  Mr.  Utdeton  with  tbe  kmg'*  ai^  ' 
swer  so  full,  and  &ee  from  all  exception,  ta 
which  I  refer  your  lordships,  that  I  knov  not 
bow  any  thing  in  the  norld  can  be  more  plain. 
And  therefore,  if  iu  parliament  ye  should  make 
nny  doubt  of  thnt  which  it  so  fully  confinned 
in  patlioluent,  and  in  a  esse  so  dnr  go  abuiu 
by  new  glo&ses  to  alter  tlie  old  and  good  law, 
we  ehHll  not  only  forsake  the  steps  of  our  an* 
cestors,  who  in  cases  of  small  importance  would 
answer, '  nolumus  mutare  leges  Angl'^  •'  but 
we  shall  yield  up  and  betray  our  nght  id  tbe 


,  Cioo^^lc 


STATE  TRI.\LS,  3  CuAstis  I.  IBUB.—OetSieTts'qffheSi^. 


[lOft 


;ie*(at  inheritBDce  tbe  subjects  of  Engbnti 
Juir,  and  thai  is  ihe  lavrg  ot  Ertglnnd,  And 
tnil;  I  bonder  hnw  anj  msn  can  admit  of  such 
a  gloss  upon  tiie plain  toil,  ns  tlJnuM  mot- 
throw  tbe  force  of  the  law ;  for  whereas  tlie 
bn  of  Magna  Charts  is,  iliat  no  ficcm:in  shtitl 
be  impriuiDed  but  bj  luwful  JudgmciU  of  his 
peers,  or  the  law  of  the  land  ;  llierffiire  that 
the  kiD|  hath  power  to  commit  without  came, 
a  X  sense  not  onlj  eipretsly  contTdrf  to  other 
Kts  of  pirlinment,  and  tfiose  especiellj  for- 
!iteH;r  cited,  tmt  uni 


liaii  not  CAQunit,  but  bj  ihe  l>i*  of  tin 
Ae  oieiDing  most  be,  u  Mr.  Attorne;  would 
Ure  it,  that  the  king  mott  not  commit  but  al 
bit  own  pleastire.  And  shall  *e  tliink  that^sur 
incision  were  so  fnulisb,  to  hazard  their  prr- 
aini  und  «Eiates,  and  labour  so  much  to  ^it  n 
liw,  sad  to  linve  it  thirlj  times  confirmrd,  ihnt 
the  king  might  not  comnil  his  subjecis  but>i 
liiiaHn  pleaiiire?  And  if  fae  did  comii^it  any  of 
Ui  •uhjects  without  a  cause  shenn,  tlirn  he 
mnti  lie  during  pleasure,  llian  which  iiuthing 
cu  be  imaiiued  more  ridiculous,  and  cont[ar}> 
to  tme  reason. 

Fur  the  Precedents,  I  observe,  tb«t  there 
tath  been  manyshenn,  ]>j  irtuch  it  appeals  to 
me  etidentlj,  tliat  such  as  hare  bveu  ronn- 
tniited  bj  the  king's  council,  thej  liaVe  been 
drlirertd  upon  Habeas  Corpus,  and  that  cun- 
stiitlf.  It  is  true,  that  some  precedents  were 
brought  on  the  king's  part,  that  wlien  nomn  of 
llaae  peisoni  desired  lo  be  delivered  by  Habeas 
Corpus,  the  king,  or  lii*  council,  ti^ui6«d  bis 
■mjestj's  pleasure  that  tli^  should  be  dcliver- 
ti,  or  tbe  king's  nttomej  hath  come  into  tbe 
mit,  and  related  the  king's  command  ;  hut 
tte  teems  to  nske  for  the  subject ;  for  it  be- 
itiK  m  his  majesty's  pnver  to  deliver  them,  who 
tj  bis  special  comutand  were  imprisoned,  mny 
KM  He  nell  think,  tliat  bis  majesty  would  ni- 
iWatthat  time  have  stayed  tlicir  deliverance 
b;  law,  than  rurtlicred  itwitli  hialetten;  and 
made  the  prisonen  rather  beholden  to  him  for 
b  grace  and  mercy,  than  to  the  judgea  for 
JBstice,  had  not  his  nuijeaty  known  that  at  that 
(imt  ibey  ought  to  linTO  been  delivered  by 
km !  1  thinic  no  man  would  imagine  a  wise 
king  won  1(1 'have  eul?i!red  his  grace  and  prero- 
gitiva,  if  any  such  prerogative  were,  to  be  no 
caniinually  questioned;  and  his  majesty  and 
ha  cnuncil  io  far  from  commanding  the  judpei 
DM  to  proceed  to  deliver  the  prisoner  by  iliein 
mntoitted,  nitfaiuit  cause  sliewn,  as  that  bo 
die  other  (i<)e,  which  is  all  the  force  of  tlie^e 
precedents,  the  king  and  the  council  signified 
lo  die  Judgea,  that  ^ey  ihinld  proceed  tn  de- 
liier  the  parties.  Certainly  if  the  king  had 
cballenged  any  such  prerogative,  that  a  person 
onnnitted,  withoot  any  cause  shewn,  oi^^t  not 
to  be  dtbTered  by  »l>e  Judges  witlmut  l«s  coo- 
Mnl,  it  would  ha^  aimeared,  by  one  precedent 
or  other  amoogst  nil  tbnt  have  been  produced, 
tte  bis  majesty  woold  have  made  lonie  claim 
IB  Dk^  a  pKK^ire.    But  it  appears  to  the 


contrary,  that,  in  many  of  these  cases,  Ae  k  in; 
or  bi>  coiincil  did  (never  interpose;  and  wbere 
they  did,  it  was  always  in  alhrmanon  and  en- 

couragomeiit  in  that  court  to  proceed.  And 
bcsidi-s,  the  ivriting  of  ktteis  from  his  majesty 
to  ihe  judges  to  dojusittco  to  his  mtijesty's  sub- 
jects, may  with  as  good  reason  be  interpreted, 
that  without  ibosc  Utters  tliey  might  not  do 
Jtreticc :  also  llie  king  signifieit  his  willingness, 
tliat  such  and  such  persons,  nllich  were  com- 
mitted bv  him,  thonld  be  delivered;  therefore 
they  codld  not  Lc  delirciod  without  it,  which 
is  a  strange  renion.  So  that  finding  the  lana 
BO  full,  so  m«hy,-nnd  so  plain  in  tbe  p'liiM,  and 
finding,  thnt  nheucver  any  were  coniqiited, 
without  cause  shewn,'  and  brougbl  their  Ihtbeas  ^ 
Curjras,  they  were  delivered,  and  no  commnnd ' 
ever  given  to  the  contr:iry,  or  cUim  iiiu'le  'in 
the  king's  pnrt  to  any  such  pterngiitivc  ;  I  mny 
safely  concIiiHf,  ns  the  house  of  commons  h:ive 
done;  and  if  any  one  precedent  or  mo  of  Inle 
cnn  be  ^wn,  thnt  llie Judges  bate-Dol  deli- 
vered the  prisoners  so  eomitiittf  d,  I  think  ii  is 
their  fault,  nnd  to  be  inquired  of.  Eut  con- 
trary, it  seems  lo  me  tn  be  on  undoubted  li- 
berty of  the  Subject,  that  if  he  be  cuminittcd 
without  cause,  or  without  cause  slreiit,  yet  he 
may  have  some  speedv  course  id  bring  dunsclF 
to  trial,  either  to  justify  his  own  iunnceucv,  or 
to  receive  punishment  according  to  his  hiulti 
for  God  forbid,  that  an  innocent  man,  by  the 
laws  of  Eugland,  should  be  put  in  worte  casa 
than  the  most  grievous mnlelftctors  are;  which 
must  needs  be,  if  ihis  shoulil  be,  that  if  a  causa 
be  shewed,  he  ihay  have  his  trial ;  but  if  none,  , 
he  must  lie  and  pine  in  prison  during  pleasicre. 
Mr.  Serjeant  Ashley,  the  other  day,  told  your 
I'lrdivhips  of  the  emblem  of  a  kii?,  but  hy  his 
leave  made  wroug  use  of  it.  Fur  a  king  bean 
in  one  hand  tbe  gloire,  und  in  tlie  other  the 
golden  scepter,  the  types  of  sovereignty  aud 
mercy,  but  the  sword  nf  justice  is  e\et  curried 
belore  him  by  a  minisii-r  of  justice;  vihicli 
shews,  subjects  may  have  their  remedies  fir 
injustice  done,  and  appeals  to  liiglier  powers: 
for  the  laws  of  I'ji}(lBud  nr«  sn  favoiimfale  to 
their  princes,  tu  tliey  can  do  ui>  injustice. 

1'lierefore  I  will  concinde,  lu  all  dis|>uies  I 
hold  do,  '  Mnpna  est  veritiu  et  pravalebit ;  so 
1  make  no  dmibt,  we  living  under  so  good  a 
prince  as  we  do,  when  this  ii  represeu'ed  unto 
liiin,  he  Will  anawer  us,  '  Magna  est  Chariit  et 
'  pra-vnlebit.' 

From  this  time  to  the  9Sth  of  the  same 
month,  the  House  of  Commons  in  a  Grand 
Committee  spent  most  of  tlieir  time  in  debnte 
about  Martial  Ijw,  and  part  thereof  in  giving 
llie  lords  a  meeting  at  two  conferences,  .con* 
cemiiig  their  resolves,  in  order  to  a  Petition  of 
Kigiit,  tranfmitted  by  tlio  comnioai  to  ihor 
lordships. 

Friday,  95tb  of  April,  1«98. 
Tbe  liOrds  had  a  Conference  with -the  Com-  - 
mons,  where  tbe  I/Td  Archbishop  of  Can- 
terbury, (Dr.  George  Abbot)  spake  as  Al- 
lows: 


163]  STATE  TJtiMS,  3  Charles  I.  162^i 
tbe  kiue's  prcnigaiive,  nor  Iwen  the  Lilierty  of 
llie  Sutjcct,  to  ibe  danger  ol'  eiiljer  klii)(  or 
pijujile.  I'Uii  is  mj^  prolession  bel'uie  OuU  imil 
yuiir  lnrd.^lii|j«. 

Juil^e  Uo<Wmd^<  said.  It  is  no  more  fit  for 
a  JiHl^e  to  decline  to  give  an  ■tcoiint  of  \n> 
doiii;;^,  lliaii^  fit  a  Christian  of  lii»  fuiili.  God 
kiioweth,  1  liuve  endeavoureil  alwaj^i  U)  Lcep  u 
good  conscience;  for  a  troubled  one,  wlm  cr.n 
btai'  i  Tb«  kingdom  holds  of  uune  but  God, 
and  Judgments  do  not  iiuss  privawly  in  cliani- 
bcra,  but  publicly  in  court,  where  ev«ry  uiii: 
luiiy  hear,  wliich  causttli  judi:;uieut  to  be  ^ivcn 
wi'ti  inuturiry.  Your  liinlaliipH  biive  bourd  ihc 
pnrticiiliirs  delivered  by  mj  brtthren,  liciw  tliat 
counsel  being  assi^ucd  la  tlio^e  four  tleiiLle- 
:  men,  in  tl.t:  Ultereiid  of  Micliaelmns  Tt- rin  tLt-ii' 
cniise  receiicd  bearing;  and  upon  cuiiEiili-mlioii 
of  liie  Statutes  and  Records,  we  found  some  n; 
tliiiu  f]  be  according  to  (he  good  olii  law  " 
Ma°iia  Cliurca  :  liu  we  ibou^lit,  tliat  they  ili'^ 
rot  come  so  close  to  tfils  cose,  as  tlint  h-.y 
tbould  be  thereupon  presently  gnuiiei).  Jt^ 
lords,  tlie  Hubens  Corpus  consists  of  three  puti 
the  Wiit,  the  lUtum  upon  the  Writ  ov  »i 
dule,  and  tltc  Entry  or  Kule  reciting  the  H.il-. 
Corpus;  Biid  tlie  Itelurn,  Uigetlier  kIUi  l 
ojiioioo  of  liie  couil,  ekber  a  '  remitlitui-. 
In  th 


1)mI,  V 


e  did,  that 


re<ni:iit  :r  (my  lords)  they  nii£ lit  hnic 
new  v»ril  the  ne»t  day;  and  1  wish  tbfi 
hcc-.iu'e  it  luny  be  they  h»d  setn  nioit,  :i 
had  bct-n  ensnl  of  ■  grtat  tiibciur.  Ai. 
hirdj,  ivhen  tlie  AttorJiey,  upon  the  ren. 
pr.:r!.ed  nn  entry,  we  all  straitly  clmi^ 
ctfrjj,  th'it  be  sb.inld  make  no      ' 


11ke< 


prcJoc 


<:«l  u 


(u.yhml.V 
iTiiiLii   und  '  leniitlitur  quosf|ue.   I 

■T-t  find  Hny.  i  bnve  now  sjl 
<i><-e!.  yenn,  and  1  should  kiiot^ 
;  surely,  if  1  had  gone  in  a  uiili  -. 
dust  Hoidd  cleave  to  my  don 

'  '  e  foot  in  the  gr«Vi 


,  lb. 


I» 
Bot  ■' 

•ernire,  divlnum  potius  est  qiiani  huniii;. 

L.  C.J.  sir  Nlc/iok,  Hj/dr,  said,  Ho 
not  speak  with  conlidence,  unle>s  he 
staud  right  in  the  opinion  of  the  hon^i  ■ 
protested  nkat  lie  spnke  l1;e  dny  btfoi. 
nnt  said  by  h.in  »iih  any  purprjje  to  i 
npou  tlie  privil,'L;cE(  of  this  honse.  but  ■! 
liiat  respect  whic  b  by  his  place  he  tlin.. 
owed  to  the  king,     lie  wid,  cnncfriii 
pnhit  he  WHS  to  speak  of,  that  be  v.oii  . 
trouble  (be  lords  with  things  fiiriuerly  rci 
wbereio  he  concurred  wiih  his  bretiin:. 
said,  if  it  weie  true  ihe  king  miglit  iiol  <:■ 
they  hod  done  ivroni(  in  not  partly  deli 
for,  niy  liirdsTsoith  be),  these  Statutes  m 
luns  bein:  njl  in  foriu;,  we  meant  not  to  ' 
upon  liny  of  iliem;  most  of  them  beiuj' 
in..|it.,ri.-s  ujiou  ^Ja^nB   Chn^ti, :    Sut   I 
not  any  ititute  that  goeth  so  fiir,  tliai : 


itizecy  Google 


HM4&  'I'HIAIS,  H  Cbakles  I. 

■•WW  anmer,   (Ccoriling  to  the 

—  tiinr  hnuse.    But  it  is  mimifctl 

m-t  tM>  lliniiked  for  it,  there  is  a 

.•«  in  sirectioD  to  the  sanie  end 

-<«Mi  MiL'li  goad  liarmuny,  tliat  I 

ttt^ftjit  l«ite  to  borruvr  ■  coiu- 

-••■■•■r,  ur  iiBtUTuI    philosapli^ : 

— ^•■>uiii;  aud  luned  brought  to- 

,_-  Y...,Kd  oil,  litile  Binivri  and 

.:.<.  utlicr,  tliough  it  lie  still; 

i.u  LHju«r  to  reply,  jet  theac 

_.  ,    . ,  juiidcd  ctinaDt  but  work  in 

^   ..  isi.l  uilbfullj  report  these 

.,  from  whence  in  due  time 

..Jsliipt  shall  rective  acoo- 

■  ^-"^li,   about  the  five  Propo»- 
'■•n  the  Lords  to  the  Hou»e  of 

■  ■'■■ril  V6, 1698. 
.iv,  how  we  liLe  of  the  Pro- 

Mt  resoluiionf  of  Ibw,  nnd 

>iuostioii  of  them.     And  at 

>  I  hope  ihej  of  other  plocea 

';heiD,  ireof  the  same  luind 

''  llieir  lurdihipt  lajiog  ihcm 

■  .It  thoy  nould  have  to  be  Ihw, 

.     ik  to  ohat  comei  from  ui,  so 

:  comes  from  them,  and  they  did 

'  '.     1  tbiok  there  is  out  gae  oF 

'  ■'  desired  aod  asked.     The  first 

fit,  fur  ibere  i*  no  use  of  theni  in 

lestions.     The  fourth  oe  have 

li'liltli  iinot  6t  tnba  had  at  all. 

I  declure  that  Magna  Cbuta  and 

'.«,  conceived  to  be  declacalioni 

inns  of  that  law,  do  still  itand  jn 

intents  and  purposes.     Consider 

.  ask  :    Who  douhts  whether  they 

ceor  no?  Indeed  some  have  puli- 

lUspia  Ghana  is  hut  a  charter  and 

llut  It  is  an  act  of  parliaoieot;  and 

apeak  what  they  wUi,  that  was  tlie 

r  statutn  till  printing  came  in.    The 

were  sent  down  in  the  king's  name  to 

tuned,  and  he  prefixed  his  name,  and 

.-  ull   nboul  UcD.  6,     ALso  the  body  of 

C  i.nrta  is,  that  it  is  confuted  to  by 

i»rls  £cc   and   for   tbe  assent  there 

irfu-enth    granted,   and    clearly    that 

l-t;  without  an  act  of  parlinnieiit :  and 

--lint  it  is,  that  all  else  in  it  is  to  this 

'  .11  executioD.     Id  fonner  parliaments, 

■V  at  least,  it  was  cooifirmed,  but  it 

I*  rii  necessity,  and  yet  tbey  are  surer 

.-  ilt-cl»ratian  you  will  now  add.     For 

<:<!.  ihHt  his  majesty  will   declare  that 

';l<.-(-t  hath  a  Propriety  in  bis  gf»oiit, 

■  •  n y  of  his  pettOD ;  tbey  that  drew  ibis 

•ii"iinsoraewhaC  mora  than  I  understand: 

*  ii'it  «hat  we  gain,   -Who  doubts  of  uur 

<  iv  !     [  aever  heard  it  denied,  but  in  tlie 

.  uliich  i«  of  ua  weii{ht.     For  the  third, 

'  iiia|«ty  will  confirm  all  just  liberties; 

'II  (ell  what  this  will  produce.     It  is  not 

■.-.juble  Ilia  majesh  with  it.    Tbe  fourth 

.1  to  be  asUd;  iW  in  all  cases  witbio 


(170 


t62S — the  Liberty  qftlu  StAjat. 

tbe  cognitance  of  the  Common  La 
iug  tiie  Liberties  of  hit  subjects,  his  m^eMj 
would  proceed  according  to  the  Common  Law. 
1  conceive  his  msjeiiy  never  froceeded  hut  ac- 
cording to  law.  it  may  iie  lliere  were  cnmroit- 
ments,  yet  tlie  couftt  of  justice  were  open  fur 
the  parties  t  j  seek  justice.  And  if  any  thing 
be  done  against  thelnw,  there,  it  is  thetuult  of 
them  tliitiit  there.  So  we  shall  take  it.  Butyet 
his  majes^  hnth  done  nothing  against  the  law. 
For  the  finh,  it  is  not  fit  to  be  had,  and  tliere- 
fore  not  fit  (o  be  asked.  If  we  ask  it  parlia- 
mentorily,  we  shall  have  n  law  lo  tliat  sense, 
and  so  we  shall  destroy  nur  rundnmeutal  liber- 
ties, which  we  have  already  resolved.  Now  a 
*  coDvenient  lime'  must  be  set  down.  la 
former  times  thtre  was  no  need  of  such  inno- 
Tutions ;  for  such  law  of  siale,  in  a  <  conve- 
nient time'  every  man  was  to  be  delitered  bv 
law.  If  they  were  »  wise  then  to  told  I't 
needless,  why  is  it  now  necessary?  Aad  far 
'  convenient  lime ;'  uhat  is  convenient  time? 
Who  shall  judge  of  it  hut  the  Judges?  Aod 
so  ihey  now  shall  have  the  poiver  ot  the  lord), 
and  ot  the  council.  Also  ni>w  we  desire  in 
some  CBSES  th6  prerogative,  &c.  I  would  fain  ' 
see  if  anv  person  may  not  becommilled  at  plea- 
sure by  this  clause,  and  no  man  is  eiempted. 
At  tliis  litrle  gap' every  man's  liberty  Inay  in 

Ihe  Cumroons  were  not  sntisGcd  with  th«« 
Propositions,  which  were  conceived  lo  choak 
the  Pctiiiun  </(  Riglit,  tlien  under  considetutioii, 
but  demurred  upon  ^ra. 
Monday,  28  April.  The  Loan  Kr.Epen  spake 
.  to  both  Houses  of  Parhnment  by  the  King's 
Command,  who  was  then  present. 

My  Lord%  and  ye  tbe  knights,  citizens,  and 
burgesses  of  the  House  of  Commons,  ye  canool 
but  remember  the  great  and  important  atfain,  _ 
concemine  tlie  safely  both  of  State  and  Reli. 
gion,  declared  first  from  his  mnjesly's  own 
mouth,  to  ha  the  causes  of  tlie  assembling  of 
this  parliament ;  tlie  sense  wherenf,  as  it  dolb 
daily  increase  with  his  majesty,  so  it  ought  to 
do,  and  his  majestv  dnubts  not  but  il  doth  so 
with  you,  since  ilie  dsngrr  increaselli  every 
dny,  both  hy  effluxion  of  time,  and  preparations 

Yet  his  majesty  doth  well  weit^li,  ihnC  this 
expeoce  of  time  hath  been  occa^oued  -ly  the 
Debate  which  hath  arisen  in  both  houses  touch- 
ing the  Liberty  of  the  Subject;  in  which,  as 
bis  majesty  lakes  in  guod  part  the  purpose  and 
intent  iiflhehouses.so  clearly  Olid  frequently  pro- 
fessed, that  they  would  not  diminish  or  blemish 
his  roval  and  just  pren^live,  so  he  presumes', 
that  ye  willairconlessita  point  of  extraordinary 
Kfoce  and  justice  in  him,  lo  suder  it  to  rest  so 
long  In  dispute  witliout  interruption.  But  now 
his  majesty  consideringth*  length  of  time  whicb 


hour  and  minute  is  so  precious  :  and  foreseeing 
that  tbe  ordinary  way  of  debate,  tboo^  never 
so  GwefuUy  hu»t>anded,  must,  ic  reganl  ^{  the 


167]  £TATETRIAI£,  sChakluI.  ims. 
Gentlemen  of  the  Hoiue  □rCammoDS;  The 

tervice  of  tlie  king  and  safety  of  the  kingdom 
do  coll  on  us,  my  lords,  to  give  all  convenieul 
exwdition,  to  digpalch  some  i>f  these  greiit  and 
weishtj  busiaesses  before  us.  For  the  betier 
ellecting  wbereaf,  mjr  lord)  have  ihoifght  fit  lo 
lei  yuu  know,  that  they  do  In  general  agree 
with  you,  and  4oubt  not,  but  you  will  o^e 
niih  us,  to  the  best  of  your  power,  to  maintaifl 
and  support  the  rundaineatal  lawt  of  the  kiii<;- 
dum,  and  the  fundameutil  Uberties  of  ilie 
Subject:  for  ihe  parricular*  which  may  here- 
after fall  in  debate,  they  have  given  me  in 
cliarge  ti.Iet  you  know.  That  what  hath  been 

£  resented  by  you  uuto  their  lordships,  they 
JVC  laid  Qothine  ofit  by,  they  are  uot  out  of 
love  with  any  ihiug  tliot  you  have  tendered 
unto  them ;  they  haie  voted  nothing,  neither 
are  they  in  love  with  any  thing  proceeding  from 
themselresi  for  that  which  we  shall  siyaiid 
protHKe  unto  you,  is  out  of  an  intendment  to 
iDvite  you  to  a  mutual  and  free  cunfereuce, 
that  you  with  contiilence  may  come  to  ui,  and 
vre  with  confidence  may  speak  with  you  ;  aa 
that  we  may  couie  to  a  conclusion  of  those 
things,  which  we  bolli  ununimously  desire.  We 
hikve  resolved  of  noihioi;,  designed  or  deter- 
loined  nolliing,  but  desire  to  take  you  witii  us, 
praying  help  from  you  as  you  have  done  from 
us. — My  lords  have  thought  of  some  Propoii- 
tiont,  which  ttiey  have  ordered  to  be  read  here, 
Uid  then  left  with  you  in  writiuK,  thatif  itseem 
good  to  you,  we  may  unifbrroly  concur  for  the 
substance  ;  and  if  you  difier,  tliat  you  would 
be  pleased  to  put  out,  aild,  alter,  or  diminish, 
as  you  shalL  thiuk  fit,  th^  so  we  may  cutoe  ibe 
belter  to  the  end  tlmt  we  do  both  so  desirously 
emhtace. 

Then  the  fire  Profositidns  followint;  were 
read  by  the  Clerk  of  the  Upper  House. 
1.  "  That  bis  maieity  would  be  pleased  gra- 
ciously lo  dectaie.  That  the  good  old  law  called 
Mwna  Charta,  and  the  lix  statutes  couceived 
to  be  decUrations  and  explanations  of  that 
U«,  do  still  stand  in  force  to  all  intents  and 
purposes. 

3.  "  That  his  majpsty  would  be  pleased  gra- 
ciously to  declare,  Th^  acdording  to  Magna 
Charta,  aod  tiie  statutes  afore-named,  as 
also  according  t<i  the  most  antieni  customs  and 
laws  of  tbis  land,  every  free  subject  of  this 
realm  hathaAindamentalPropnetyin  bis  Goods, 
and  a  fundamental  Liberty  of  his  ['eraun, 

3.  "  That  his  mnjesty  would  be  graciously 
pleased  ID  declare.  That  it  ii  hit  royal  pleasure 
to  ratify  and  confirtn  unto  all  and  every  his 
loyal  and  ftithful  subjects,  all  their  ancient, 
several,  juM  Liberties,  Priiilegcs,  and  nights,  in 
as  ample  and  beneficial  manner,  to  all  mtents 
Mid  purposes,  as  their  ancestors  did  enjoy  the 
tame,  under  the  government  of  the  best  of  his 
most  noble  projgeoitors. 

4.  "  Ttqit  liis  majesty  would  be  pleased  gra- 
(nously  to  declare,  lor  the  good  content  of  his 


. — Proceedifg»  m  ParUmmau  nlatmg  to  [1G6 
zance  of  the  common  law  concerning  ilic  Li- 
berties of  the  Subject,  his  majesty  would  pro- 
ceed according  to  tlie  common-law  of  this  land, 
nad  according  to  the  laws  esiubli^hed  in  ilio 
kingdom,  and  in  no  other  manner  or  wise. 

5.  "  Aa  touching  his  majesty'i  royal  Prero- 
gative, iiitriniicul  to  his  sovereignity,  and  iu- 
trusied  him  withal  from  God,. '  ad  cummuuFm 
'  totiu3p<ipu1isalutem,etnoaaddcstructionein;' 
his  majesty  would  risoive  nut  to  use  or  diteit 
thesamr,  to  the  prejudice  of  any  of  his  loyal 
people,  io  the  propriety  of  their  goods,  or 
Tiberty  of  their  peisons ;  and  in  case,  for 
the  security  of  tiii  majesty's  royal  person, 
the  common  safety  of  liis  peufile,  or  iba 
peaceable  governmunt  of  tiiis  kingdom,  bit 
majesty  shaU  find  just  cause  for  reasuu  of  state 
to  imprison  or  restrain  any  raan's  person,  bia 
majesty  1^'ould  gracioukly  declare,  1  tint  wiihin 
a  convenient  time  lie  thall,  and  will  express  ibe 
cause  of  the  commitment  or  restraint,  either 
general  or  special;  and  upon  a  cnuse  lo  e>- 
pressed  will  leave  him  immediately  lo  be  triad 
according  to  the  common  justice  of  ibe  kiag> 

After  the  rtading  of  tlie  Propositions,  the  Arcb- 

This  ii  hut  a  model  lo  be  added  unto,  altei«d, 
or  diminished,  as  in  your  reasons  and  wisdoin* 
ye  shall  think  fit,  ^fteryc  have  commonicaled 
the  same  to  tlie  rest  of  the  members  of  tb« 

To  thn  Speech,  Sir  Dcdlev  Diocs,  it  being  xt 
a  Free  Conference  in  behalf  of  theCum- 
mons,  made  this  Keply; 

My  lords;  it  hath  pleased  Almighty  God 
many  ways  to  bless  the  knights,  citizens  asd 
buigesscs,  now  assembled  in  parliament,  with 
great  comfort,  and  strong  hopes,  that  this  will 
prove  as  happy  a  parliament  as  eter  was  in 
England.  And  in  their  consultations  for  the 
service  of  bis  majesty,  and  the  safely  of  this 
kingdom,  our  special  comfort  and  strong  hopes 
have  risen  from  ths  continued  good  respect, 
which  your  lordsh^s  so  nobly  liave  been  pleased 
to  sheiv  unto  them ;  particularly  at  this  present, 
in  yoar  ■»  honourable  profession  to  agree  with 
them  io  general,  in,ilesiring  to  maintain  and 
support  the  fiindamental  laws  and  libertief 
ofGngland. 

The  commons  hate  commanded  me  in  like 
sort,  to  assure  your  lordships  tliey  have  been, 
•re,  and  will  be,  ai  ready  to  propu^n  the  just 
Prerogative  of  his  majesty,  of  nhich  in  all  ibeir 
Arguments,  Searches  of  Records,  and  Besolu- 
tions,  Ihey  have  been  most  carefiil,  according 
to  that  which  formerly  was,  and  bow  again  H, 
protested  by  them. 

Another  noUe  argument  of  your  honounble 
disposition  towards  tbein  is  expressed  in  this, 
Hiat  you  are  pleaaed  tu  expect  no  present  an- 
swer  from  tbeui,  wbo  are  (as  your  lordshipa  in 
your  great  wisdoms,  they  doubt  not,  have  coa> 
sidered)  a  l^eat  body,  tint  must  advise  upon  all 
Mw  Piopnuiioiu,  and  resolte  upon  tbeu  be- 


169] 


STATE  TBIAIS.  3  Charles  I.  1628.— ifte  LUxrtf  qfilu  Sufy'^ct. 


[ITO 


bit  ihej  can  dre  uuwer,  according  to  the 
ucient  onler  nf  their  house.  But  it  a  mnnileit 
m  geoeial,  God  be  tlmnked  for  it,  there  is  a 
|mt  concurrence  of  ■ITi'ctioii  to  the  same  end 
a  bolii  bou>e«,  aod  sucli  gnoi)  harmoiiy ,  that  I 
ncreat  yom  lurdsliips  leuie  to  borrow  a  coin- 
jamoo  Irom  nature,  or  natural  jiliilowph^ : 
di  two  lutei  HeJl  simag  uid  tuned  bruughi  lo- 
jtlho',  if  one  be  pLijed  on,  litile  ilrnvii  nnd 
BicbwilJ  9iir  upon  [lie  other,  though  it  lie  Mill; 
SI  [hough  we  hrive  no  power  to  reply,  jeX  the>e 
things  laid  and  propounded  cnnnot  but  work  in 
lor  hearU,  and  we  will  fuithfuUy  report  these 
puugts  to  our  house,  from  wheuce  in  due  time 
(■e  hope)  jour  lurdabipi  shall  receive  a  cou- 
tcQlful  Buswer. 

Hr.  Seldeh's  Speech,  about  the  live  Proposi- 
tianiseni  from  Ihc  Lords  to  the  House  of 
Communs,  April  iO,  1693. 
Out  debate  1)  now,  hon  we  like  of  the  Pro- 
pwtion^.  Ours  were  resolutions  of  law,  nnij 
MDtn  can  make  question  of  them.  And  as 
■e  are  coiistuiit,  so  I  hope  thej  of  other  phtcet 
ibat  have  neigbed  them,  are  of  the  lame  luind 
■ilh  us.  But  DOW  (heii  lurdsliips  lajine  them 
bj,  propound  wliat  ihcj  would  have  to  be  law. 
Ailbej  maj  speak  to  vthat  cotuei  frnin  us,  so 
a»j  we  to  what  cornea  from  them,  and  the;  did 
iDnie  OS  thereto.  I  think  there  is  nut  one  of 
iIk  firs  fit  to  be  desired  and  asked.  The  first 
Ikree  are  not  fit,  for  there  is  no  use  of  them  in 
lime  great  queatioiu.  The  fourth  we  have 
lirtadj,  and  the  llt'cli  is  not  lit  ti>  be  had  at  all. 
Tbefnt  'a,  to  declare  that  Magna  Chula  and 
li»iii  (laCutea,  conceived  to  be  declarations 
mil  eiplaoatiuuE  of  that  law,  do  iiill  stand  in 
firce  to  all  intents  and  purposes.  Consider 
*bt  it  is  we  Bsk  :  Who  doubts  whether  the; 
naaduilbrceor  no?  Indeed  some  have  puli- 
bhrd  that  Magna  Charta  is  but  a  charter  and 
Mlaw.  But  it  ii  an  act  of  parliament ;  and 
kt  ncD  apeak  vrhat  die;  wdi,  that  vras  tde 
MioD  of  itBtates  till  printing  came  in.  The 
Mnuet  were  sent  duno  in  IM  king's  name  to 
WiirocUimed,  and  he  prefixed  his  name,  and 
ihii  was  till  about  Hen.  6.  Alho  the  bod;  of 
Htpn  Charta  is,  that  it  ii  contented  to  b; 
•U  (he  earls,  &c  and  for  the  assent  there 
■u  a  fifteenth  graaied,  and  clear!;  thut 
nuwt  be  without  an  act  of  parlinment:  and 
10  coDiunt  it  is,  that  all  ebe  in  it  is  to  this 
^;p«t  in  execution.  Id  former  parliaments, 
ij  Aiity  at  Icatl,  it  was  comfirmed,  hut  it 
ni  not  of-oecessitj,  and  jet  the;  are  surer 
iW  this  declaration  jau  will  now  add.  For 
i^HCond,  that  his  majest;  will  declnre  that 
t<er;iub|ect  hath  a  Propriet;  in  his  gooils, 
*h1  lihen;  ,of  his  person  ;  the;  that  drew  tbis 
Mi^  mean  somewhat  more  than  I  understand  : 
1  know  DO!  what  we  gain.  Who  doubiit  of  our 
tnfiktj  I  I  never  heard  it  denied,  but  in  the 
palpit,  which  ii  of  uo  weiitht.  For  the  third, 
Ihu  bis  m^ew;  will  confirm  aU  Just  liberties ; 
■We  caa  lell  what  this  will  produce.  It  ia  not 
h  we  tronble  Lis  majesR  with  it.  The  fourth 
••KtfittobeBtkcd;  Tbu  in  all  cases  within 


the  cognizance  of  the  Common  Law  concern- 
lug  the  Liberties  of  his  subjects,  bis  majcstj 
would  proceed  Hccording  to  [lie  Common  Law. 
I  conceive  hiB  niajest;  never  proceeded  hul  ac- 
cording to  law.  itmu;  be  there  werecnmini&- 
ments,  yet  tlie  cDufts  uf  justice  were  opeo  for 
the  parties  tJ  seek  juuice.  And  if  an^r  thinj 
be  done  against  the  uw,  there,  it  is  the  tault  of 
them  thatiit  there.  So  we  shall  take  it.  But;et 
his  majes^r  hnth  done  nothing  ngniust  the  law. 
For  [he  fifth,  it  is  nut  fit  to  be  hud,  and  tliere- 
fore  Dot  fit  to  be  sskcd.  If  we  ask  it  parlia- 
mentarily,  we  shall  have  a  law  [o  that  sense, 
and  so  we  shall  destro;  our  fundametital  liber- 
ties, which  we  have  alreiuJ;  resolved.  Now  a 
■  convenient  lime'  must  be  set  down.  In 
former  times  tiiere  was  uo  need  of  such  inno- 
vations; for  such  law  of  BLa[e,  in  a  '  conve- 
nient time'  e\'er;  man  was  to  be  delivered  by 
law.  If  they  were  so  wise  then  to  fcold  it 
needless,  wb;  is  it  now  necessary  ?  Aod  for 
'  convenient  time  ;'  »  hat  Is  convenient  time  t 
Who  shall  judge  of  it  but  the  Judges?  Aad 
BO  ihey  now  shall  have  the  power  ol  the  lords, 
and  ol  Che  oiuncil.  Also  now  we  desire  in 
some  cases  ihd  prerogative,  &c.  I  would  fain 
see  if  an;  person  ma;  not  becommitted  nc  plca- 
isure  by  this  clause,  and  no  man  is  exempted. 
At  this  litile  gap'  ever;  man's  liberty  tnaj  in 

7'he  Cuinmons  were  nut  saciificd  with  thesa 
Proposi lions,  which  were  conceived  to  citoalc 
tbe  PctiiKiu  9r  night,  then  under  consideration, 
but  demurred  upon  tl>eiu. 

Monday,  38  April.    The  Lord  Kccfer  spake 
.    to  both  Houses  of  Parliament  b;  the  King's 
Command,  who  was  then  pretent. 

M;  Lord*,  and  ;e  (be  kn^hts,  citizens,  and 
burgesses  of  the  House  of  Commons,  ye  cannot 
but  remember  the  great  and  important  alTair*, 
concerning  [he  safety  both  of  State  and  Reli-  ' 
gion,  declared  first  from  his  mnjetl;'*  own 
mouth,  to  ba  the  causes  of  the  assemhlins  of 
this  parliament ;  ilie  sense  whereof,  as  it  doth 
dailj  increase  with  his  majesty,  so  it  ought  to 
do,  and  his  majeatv  doubts  not  but  it  doth  so 
with  you,  since  the  dsngfr  increasetb  every 
day,  lioth  by  effluiinn  of  time,  and  preparations 
of  the  enemy. 

Yet  bia  majesty  doth  well  weinh,  that  thi* 
expence  of  lime  haih  been  occuluued  jy  the 
Debate  which  hath  arisen  in  both  houses  Coucli- 
ing  the  Liberty  of  the  Subject;  in  which,  as 
his  majesty  takes  in  good  pari  the  purpose  ami 
intent  iifthe  ho uses.so  clearly  and  frequently  pro- 
fessed, that  they  would  not  diminish  or  blemish 
his  royal  nnd  just  prerogative,  so  he  presumes', 
that  )e  will  bII  cunlessic  a  point  of  extraordinary 
Krace  andjusiice  ih  him, to  suSer  it  to  rest  to 
long  in  dispute  witliout  intemipliun.  But  now 
his  majesty  conuderingthelengih  of  time  which 
it  hatli  already  taken,  and  fearing  nolhing  SO 
much  as  any  future  loss  of  tliat,  «  hereof  every 
hour  and  minute  i^  so  precious :  and  foreseeing 
that  tbe  ordinarv  way  of  debate,  thoagh  never 
H  carefully  husbanded,  must,  in  regard  yf  ihs 


171]  STATE  TRIALS,  SCuaklesL  16^8. 

form  of  both  Iiouses,  neceuariW  take  more 
lime  than  the  affairs  of  Chriitendom  can  pei^ 
■Dit ;  his  mnjest?,  out  of  liis  great  princely  care, 
h»t1i  thought  of  ttiia  expedient  to  Ehott«n  tlie 
business,  bj  dectoring  tbe  clearness  of  his  own 
heart  iind  intention  i  and  therefore  liaCb  com- 
iDAnded  me  to  let  your  know, 'That  he  holdelh 
'  the  Statute  of  Magna  Charta,  and  tlie  other 
'  six  Statutes  insiaud  upon  for  the  Subject's 
'Liberty,  to  be  nil  in  force,  and  assuva  you, 
'  thai  he  will  mni^tain  all  bis  Subjects  in  the 
'just  Freedom  of.th«r  PersoDi,  and  Safety  of 
'  their  Estates :  and  that  he  will  goTern  accoid- 

*  itij[  10  -die  laws  and  statutes  of  this  realm; 
'  and  that  ye  shall  find  as  much  Security  in  his 
'  nmjesty's  royal  word  and  promise,  as  in  the 
'  strength  of  any  law  ye  can  make ;  so  that 

•  hereafter  yc  shall  never  have  cause  to  com- 
'plain.'  The  conclusion  is.  That  bis  majesty 
pniyeth  God,  who  hath  hitherto  blessed  this 
kiiigtfam,  aad  put  into  his  heart  to  come  to  you 
this  day,  10  make  the  success  thereof  happy, 
both  to  king  and  penple;  and  cherefuro  ho  de- 
sires, diat  no  doubt  or  distrust  may  possess  any 
man,  but  that  ye  will  all  proceed  speedily  and 
unanimously  to  the  business. 

The  Commons  beina  returned  from  the  lords 
house,  Mr.  Secretnry  Cook  pe.-suaded  them  to 
cbmply  nitb  the  king.  . 

His  majesty,  said  he,  puts  us  in  mind  of  the 
great  important  affain  of  the  state,  and  of  lit* 
sense  thereof,  that  by  effluxion  of  lime  in- 
crNUjeth  in  him,  and  he  doubts  not  hut  that 
it  doth  increase  in  us.  Ye  see  his  majesty's 
moderation  ip  ihs  interpretation  of  all  our  ac- 
tions; besajth,  that  he  tiopes  wo  have  the  same 
sense  h«  hath,  lie  is  pleased  to  cniisider  of  the 
occasion  of  eipenfe  of  lime  that  grew  from  the 
Debates  in  both  houses.  We  see  how  indul- 
fent  he  is,  that  however  the  affairs  ofChritiea- 
dom  are  great,  yet  he  otnita  not  this,  nay,  he 
cakes  in  good  part  our  Proceeding  and  ouj 
Declarations,  that  we  will  not  impeach  the 
FrertKutive:  also  his  miijfesty  presumes,  that 
we  will  confess,  that  he  hath  uted  eitroordi- 
nary  grace,  in  that  he  hath  endured  dispute 
■o  long,  be  ackoowledgeth  it  justice  to  stand 
as  we  have  dune. ' 

Further  out  of  a  princely  care  of  the  public, 
he  is  careful  no  more  lima  be  lost ;  and  be- 
cause he  sees  same -eiCraordi nary  cntirae  to  be 
taken  to  satisfy  us,  he  observes,  tliat  in  the 
form  of  the  debatr,  such  length  is  re<]uired  as 
the  nature  of  the  business  will  not  endure.  It 
is  to  be  presumed,  that  his  goremment  will  be 
according'to  the  law  :  ne  cannot  hut  remember 
what  his  father  said,  ■  He  is  no  king,butaty- 
'  nuit,  that  governs  not  by  law  :'  but  this  king- 
<lom  is  to  be  governed  by  the  Common  Law, 
and  his  mtytstf  assures  us  so  much ;  the  intei^ 
nretution  is  left  to  the  Judges,  and  to  bia  great 
Council,  and  all  is  to  be  regulated  by  the  com- 
mon law.  I  mean  not  Magna  Charta  only,  for 
that  Magna  Charts  wai  pait  of  the  common 
law,  and  (be  ancient  law  of  this  kingdom  ;  all 
our  differCDce  is  in  the  applicUion  of  this  law, 
•ltd  how  ibis  Uw,  with  uifferenc*)  it  derived 


, — Praxedmgt  in  I'arliamau  relating  to  [17% 

into  ever;  court.  I  conceive  there  are  two 
rules,  the  one  of  brais,  that  is  rigid,  and  will  * 
not  bend,  and  that  is  the  law  of  the  KingV 
Bench,  this  law  will  not  bend ;  and  when  it 
lights  on  subjects  fitting,  if  it  do  not  bend,  it  is 
unjust ;  and  there  comrs  in  the  Law  of  Chan- 
cery and  equity ;  this  is  applicutioD  of  law  in 
private  men's  causes,  when  it  comes  to  maim 
et  luum.  And  tbui  the  general  governmentnf 
rases,  with  relation  lo  the  common  stat^  of  the 
kingdom,  is  from  the  Council-board,  and  there 
tlvy  are  to  very  from  the  law  of  the  kingtloni ; 
suppose  it  be  in  time  of  dearth,  propriety  of 
goods  may  in  ihnt  time  be  forced,  and  be 
brought  to  the  roatket :  we  saw  the  eijierience 
of  it  in  coals  in  London,  and  the  Council- Botird 
'  caused  them  to  be  brought  forth  and  sold.  In 
a  time  of  Pestilence  men  may  be  restrained  : 
if  a  schism  be  like  to  grow  in  a  Church,  the 
State  will  enijuire  after  the  fevoure™  of  it : 
if  tliere  be  fear  of  an  Invasion,  and  it  be  en- 
couruged  by  hope  of  a  party  among  us,  it  is  in 
the  pnwer  of  the  government  to  restrain  men 
to  their  houses. 

In  the  composure  of  these  things,  there  i* 

great  diffi^rence:  wltat  differences  have  been 
etwceu  the  caurtt  of  Chancery  and  King's- 
Bench  f  It  is  hard  to  put  true  rlifference  be- 
tween the  king's  PrerogRlive  and  our  Liberties, 
His  mnjesty  saw  eipeiice  of  timi;  would  be 
prpjudicial ;  it  pleased  God  to  move  bis  jnaa 
jesty  by  a  divine  hand  lo  shew  us  a  way  to 
clear  all  our  difficulties,  let  us  attend  to  nil 
the  para  of  it ;  there  be  five  degrees,  and  there 
is  more  assurance  than  we  could  have  by  any 
law  whatsoever.  His  majesty  declares,  that 
Magna  Ghana  and  the  other  Statutes  ate  in 
force  ;  this  is  not  the  first  lime  that  the  Liberty 
of  tlie  Subject  was  inlringed,  or  was  in  debate 
imd  confirmed ;  all  limes  ihtiught  it  safe,  that 
when  they  casie  lo  a  negnti»e  of  pnwer,  it  wbi 
hard  to  keep  government  and  liberty  togetber: 
hut  his  majesty  stooped  not  there  ;  but  accord^ 
ingtolbesenseortheseUw<i,  that  he  will  gorem 
his  subjects  in  their  just  Liberties,  he  assure* 
us  oiir  liberties  are  just,  tliey  are  not  of  grace, 
but  of  right ;  nay,  he  assurer  us,  be  will  govern 
us  according  to  ibelavis  of  the  realm,  and  that  . 
we  shall  lii^  as  much  security  in  his  majesty*! 
promise,  as  in  any  law  we  cop  make,  and  whn^■ 
8oe\'er  law  we  shall  make,  it  must  come  to  his 
m^GSt^'s  nlkiwnnce;  and  if  his  majesty  find 
cause  in  hts  government,  he  may  not  put  life  to 
It:  we  daily  see  all  laws  arc  broken,  nod  all 
laws  will  be  broke  for  the  public  gond,  and  the 
king  may  pardon  all  offenders ;  his  majesty  did 
see,  that  tne  best  way  to  settle  all  at  unity,  i* 
to  express  his  own  heart :  the  king's  heart  )• 
the  best  gulder  of  hit  own  promise,  his  promise 
is  bound  with  his  own  heart.  What  prince  can 
express  more  care  and  wisdom  f 

Lastly, be saith,  ThatKereafteryeshallneTer 
have  the  like  causa  to  complain  :  may  we  not 
think  the  Breach  is  made  uuF  Is  not  his  ma- 
Jestv  engaged  in  his  royal  word  ?  The  conctosion 
IS  lllll  of  weight  1  and  he  prays  God,  that  as 
God  hath  blessed  thii  kiogdiun,  and  put  it  intn 


ITS]        ETTATE  TRIALS,  3  Cmablm  I.  ieHB.—tbe  Liberty  qf  the  Si^at. 


[174 


bit  beut  to  rone  •mong^t  us,  m  to  make  this 
da;  Kiccesslul.  '  Tbewretliofa  biogia  likelho 
'  nnring  of  a  lioo,'  and  ill  Uws  with  bis  wrath 
■re  to  no  eSecC ;  but  '  the  kini-'i  fmVour  n  like 
'tluilewupan  the  grass,' tbece  nil  will  prosper; 
uil  God  lo&de  the  iiutruineiits  to  unite  all 
ttam.  Hia  nrnjesi;  having  thus  dischnrged 
tiiniMlf,  heprajrs  ui  to  proceed  10  llie  business 
liiatia  modi  coocems  him.  /r.  his  mnjestjr 
liili  now  shewed  biinsclf  the  hn(  of  kin|s,  let 
gj  leknooledce  his  msjesty'ii  goodness,  and  rc- 
Utd  tu  tLai  UuioD  which  we  all  desire. 

Bat  this  mo^njvBs  not  received  with  gene- 
nt  Bcceptaiion ;  and 

Sir  Benjamin  Sudyard  replied  to  it  i    . 

We  m  now  upon  a  great  Business,  and  ihe 
nanntr  o{  bendliiig  it  uikj  be  as  great  hs  the 
Wsinna  itself.  I  need  not  lell  jou,  that  Li- 
batj  is  a  precious  thiog,  frir  every  inun  may 
Kt  i'u  mtn  price  upon  it,'  stid  he  that  dotli  not 
(aJtie  it  deserves  to  be  valued  accoTdiugly. 
For  my  own  part,  I  am  clear  without  scruple, 
thai  wbat.ne  Dave  resolved,  is  according  lo  the 
lav;  and  if  any  Judge  in  England  were  of  a 
caDlniy  ouinioD,  I  am  sure  we  should  hare 
beard  of  bun  ere  now.  Wiihouc  all  question, 
tbe  rerypoiut,  scope,  and  drift  of  M^gua  Charts 
>u,  (0  reduce  the  regal  toa.l(gnl  power,  in 
natwr  of  ImprboDiDCDt,  or  else  it  had  not 
beta  worthy  so  much  contending  for. 

Bat  there  have  been  Precedents  brought  to 
ptere  the  practice  and  interpretation  of  the 
in.  I  confers  I  have  heard  many  Precedents 
if  utility  and  respect,  but  none  at  all  of  truth, 
AT  of  law  ;  certainly  there  is  no  contt  of  justice 
b  En^and,  tbnt  wiU  discharge  a  prisoner  coin- 
nilted  by  the  king,  regt  inamnllo,  without 
tcqiwiting  the  king;  yei  this  good  manners 
was  nerer  maile,  or  mentioned  D3  a  legal  part 
of  tlie  delivery,  , 

It  b  objected,  That  the  king  ought  to  have 
ttiBi  left  and  deposited  in  him :  God  forbid  hi 
ke  should  :  anif  I  sny,  that  it  is  impossible  t 
lake  it  irocn   him,  far  it  Ues  not  in  the  wit  of 
msn  to  devise  such  a  law  as  should  be  abli 
cam[irehend   all  particulars,  all  accidents, 
tliat  exmordinary  cases  mii^t  happen,  whi 
■ben  they  cotne,  if  they  he  disposed  of  for  the 
cnsmoii  good,  there  will  be  no  law  againdt 
tkna,  yet  must  the  law  be  general,  for  othei- 
>ise  admisnoils  and  exception*  will  frei,  and 
est  oat  the  law  to  nothing.     God  himself  has 
mutituted  a  general  law  of  nalore,  to  gnvei 
the  ordinary  course  of  things,  he  hath  made  r 
hnfor  mirudes;  yet  there  i»  this  observation 
cf  them,  that  they  ore  rather  '  pneter  naturam',* 
than'  coutra  naruram,'  aud  always'  propter  bo- 
'dos  fines:'  fur  king's  Prerogatives,  arc  ratliei 
IwDcles  the  law,  thaa  against  it ;  and  when  thei 
are  directed  to  right  ends  for  the  public  good, 
(Ik^  are  not  only  concurrlnt;  laws,   but  even 
lai  in  angularity  and  excrllency. 

But  (o  come  nearer,  Mr.  Speaker,  let  a: 
OMHler  where  we  are  now,  what  steps  we  iiavi 
■He  and  puned ;  the  kii^^i  learned  Counsel 


have  acknowledged  all  ih^  laws  to  be  still  in 
force:  the  Judges  have  not  allowed  any  judg- 
ment againtt  these  laws  :  the  Lords  also  have 
confessed,  that  ihe  laws  are  in  full  strengtli; 
they  have  further  retained  our  Resolutioiu  en- 
tire, and  without  prejudice. 

All  thia  hitherti)  is  for  our  ailvantage;  but 
above  alt,hls  majesty  has  this  day,  himself  being 

Eublicly  present,  declared  by  the  niuuth  of  the 
ord-Keeuer,  before  both  the  houses,  That 
Magna  Cbarta,  and  the  other  six  Statutes,  are 
still  in  force ;  that  he  will  maintain  his  subject* 
the  Liberties  of  their  Persons,  and  Proper- 
ties of  their  Goods :  that  he  will  govern  them 
according  to  the  Laws  of  ihc  kingdoni;  this  Js 
a  solemn  and  binding  satis&ction,  expressing 
his  gracious  readiness  to  comiily  with  his  people 
in  ^1  their 'reasonable  and  just  desires.  'The 
king  is  a  eood  joon,  and  it  is  no  diminution  to 
-  king  to  lie  called  so;  for  whosoever  is  a  good 
an,  shall  be  greater  than  a  king  that  ia  not 
I.  The  king  certainiv  is  very  tender  of  hia, 
present  honour,  and  of  his  fnrae  hereafter  :  he 
will  think  it  hard  to  linvo  a  worse  mark  set 
upon  his  government  than  upon  aity  of  his  an- 
cestors, by  exlraordioary  restraints;  his  ma- 
jesty hath  already  iniimaled  unto  us  by  a  mes* 
sage,  That  he  doth  willingly  give  way  to  have 
the  abuse  of  power  reformed.  By  which  I  do 
verily  believe,  that  he  doth  very  well  under- 
stand what  a  miserable  power  it  is,  which  hatli 
produced  ao  much  weakness  to  himself,  and  to 
the  kingdom;  and-it  is  our  happiness,  that  be  is 
BO  ready  to  redress  it. 

For  my  own  part,  I  shdl  be  very  glad  to  see 
thnt  good  old  decrepid  law  of  Magna  Chnrta, 
which  hath  been  kept  so  long,  and  lain  bed-rij 
as  it  were;  1  shall  be  glad  to  see  it  walk  abroad 
again  with  new  vi$(Our  and  lustre,  attended  and 
followed  with  the  other  six  Statutes :  question- 
less it  will  be  a  great  heartening  tu  all  (he  peo- 
ple. I  doubt  not,  but  upon  a  deCatiog  Con- 
ference with  tlie  Lord),  we  shall  happily  fait 
upon  n  (iiir  and  lit  a 


in  the  point,  against  imprisonment  for  Loan* 
or  Privy-Senls.  As  for  inlriruical  power  and 
reason  of  state,  they  are  matters  in  tfie  clouda, 
where  I  desire  we  m*y  leave  ihem,  and  not 
meddle  with  them  at  all:  lest  by  the  way  of 
admittance,  we  may  lose  somewhat  of  that 
which  is  our  own  already.  Yet  this  by  the 
waj  I  will  say  of  Renson  of  State,  That,  lu  tho 
latitude  by  which  it  is  used,  it  bnlh  eaten  out 
almostj  UDt  only  the  laws,  but  all  the  religion 
of  Christendom.  ^ 

Now,  Mr.  Speaker,  I  will  only  remember  you 
of  one  precept,  and  that  of  llie  wisest  man  ; 
'  Be-nat  over  wise,  be  not  over  just  i'  wid  he 
gives  this  reason,  '  for  why  wilt  thou  be  deso- 
late V — Sir,  if  justice  and  wisdom  may  be 
stretched,  to  desolation,  let  us  thereby  learn^ 
that  moderation  is  the  virtue  j>f  virtues,  and  the 
wisdom  of  wisdoms.  Let  it  beourmasier-piece 
so  to  carry  our  business,- that  we  may  keep  par- 
liafnents  on  foot :    furasioogas  they  metre- 


175]  STATE  TRIALS,  SChablesI.  J  62 

«]uent,  iliere  Will  be  no  irregular  power;  which 
thMugh  it  cannot  be  bmkeii  at  onc«,  yet  iii  sliort 
time  it  nil)  ttide  mid  moulder  ^wn; :  there  ciin 
be  li»  totnl  or  final  loss  or  Liberties,  but  by 
loss  of  Porliiimeiits,  As  long  u  tliey  last, 
what  we  cannot  get  at  one  time,  we  nmj  have 
Bt  another. — Le»  n^i  man  tliink,  that  what  I 
have  snid  is  the  lahf^uBKe  of  a  (jrivate  end,  my 
aim  is  upmi  the  giwd  sudleiis  at  the  whole;  for, 
I  Ihaiik  Uod,my  mind  standsabove  any  fortune 
that  is  to  he  got  by  base  nnd  nnworthj  means : 
no  man  is  beund  to  be  rich  or  great,  no,  nor  tn 
be  wisL' ;  but  evL-ry  man  b  bound  to  be  honest, 
cut  of  which  heart  I  hate  spoken. 


April,  1020. 
Gen  lie  men  ;  For  God's  take  be  wbe  in  your 
will-Hwant  leal :  why  du  yoy  ai^ue  away  pre- 
cious time  that  caa  never  be  revoked,  or  re- 
£  aired  f  Woe  is  me!  while  we  dispute,  our 
icudsperiiliiaudwemust  Tollow  them.  \Vhere 
■re  we,  if  we  bieok ;  aad  (I  tremble  to  think) 
we  cannot  but  break,  if  we  hold  so  stiff.  Oar 
liberties  and  Prapriedct  are  sudicieatly  declared 
to  be  sure  and  legal,  our  Remedies  are  clear 
and  irrefragable  ;  what  do  we  fear,  every  sub- 
ject sees  the  way  now  chalked  out  for  future 
luMice,  and  who  dares  benceforlh  tread  besides 
It?  Certnitily  whilst  Parliaments  live,  we  need 
not  mis-doubt  tho  violations  uf  our  Freedoms 
Mid  Rights ;  miy  we  be  but  where  the  inw 
found  U5,  we  shall  sufficiently  enjoy  ourselves 
and  oorsi  it  is  no  season  to  search  for  more  ! 
O  let  us  not,  whilst  w*  over-rigidly  plead  (or  an 
fii'her  strain  of  safety,  put  ourselves  into  a  ne- 
CL'^ity  of  ruinand  uiter  despair  of  redress:  let 
us  not,  in  the  suspicion  of  evils  that  may  be, 
'  cast  ourselves  into  a  present  confusion.  If  you 
love  yourselves  and  your  country,  remit  some- 
ihingofyourown  terms;  and  »nce  the  substance 
is  yielded  by  your  noble  patriots,  stand  not  too 
rigorously  upon  points  of  circumstance  ;  fear 
not  to  trust  a  good  kin;,  whn,  ailer  Che  strict 
laws  made,  must  be  trusted  with  the  execution. 
Think  that  your  country,  nay  Christendom,  lies 
on  the  mercy  of  your  present  resolutions.  Re- 
lent, or  farewel  welfare.  From  him  whose  faith- 
ful heart  bleeds  in  «  vowed  sacrifice  for  his  king 
'  and  country,  Exeteb. 

Upon  this  Debate  it  was  ordered.  That  • 
Committee  of  Lawyers  do  ilraw  a  Bill,  coiitBin- 
ittg  the  substance  of  Mngna  Charta,  and  ihe 
other  Statutes,  that  do  concern  the  Liberty  of 
the  Subject;  which  buiiness  took  up  two  whole 
days. 

Mr.  Seldbn's  Splecb  at  ihe  Comniiuee  about 
the  Bill  fur  Mi^iia  Charta,  and  the  Liber- 
ties of  the  Subject.     April  38,  1698. 
I  would  have  the  violation  tenderly  mention- 
ed.    Let  us  set  down  the  Statute  of  Magna 
Charta.     13  Hen.  4,  it  is  adjudged  in  the  Pfti^ 
liament  Roll,  that  the  Statute  of  Tnllaae  is  an 
Act  of  Parliament.      It  is  not  entered  in  the 
Statute  Roll,  ud  it  wu  34  Ed.  1.  19  Ed.  », 


.—Procetding)  m  Pariiamaa  nUning  to  [\16 

rot,  cUus.  mem.  15.  '  Les  coraens  priont  Jou 
'  divers  fuer'  prise  et  imnrison  per  Bccttscment 
'  depersons  malevolent  Ion  ne  filer'  indict  ace' 
'  al  ley  del  terre,  ils  priotit  que  lis  qne  sont 
'  prise  sans  indictment  veignont  en  Chancery, 
'  et  que  droit  serra  fait,  Et  roy  vtilt  que  nuj 
■  serra  prise.'  But  this  is  not  in  the  Parliament 
Rolls  Ed.  S,  c.  9.  l*Ed.  3,c.  1,'thatlliere 
'  shall  be  no  kid  nor  charge  but  hy  Parliament.' 
Q5Ed.  3,  c.  4.  'None  shall  be  attached  by  pe- 
'  titioii  without  presentment,  or  an  original  writ.' 
25  Ed.  S,  no,  16.  <  Item,  priont  les  comeiit 
*  que  les  loans  soient  release,  et  null  serrn  com- 
'  pell  de  Rtire  arrere  encontre  les  franchises  del 
'  terre.  Le  roy  le  pie  st."  28  Ed.  3,  e.  3.  '  Nul  . 
'  serra  unsie  de  lerre  ou  tenements  sans  due 
'  proe'es  del  ley."  3Ci£.3,no.9.  'QQelegrund 
'  Charter  serra  duly  observe,  et  null  serra  im- 
'  prison  sur  special  command,'  36  Ed.  3,  no. 
30.  '  Que  nul  serra  imprison  per  spectnt  com- 
'  mniid.'  30  E.  3,  no.  34.  <Si  BM^un  hoinesoit 
'  Brieve  contre  lis  articles,  avanl  dit  veigne  en 
'  Chancery  et  droit  serra  fait.'  87  Ed.  3,  no.  10. 
'  lis  la  desire  que  le  grand  Charter  et  especlal- 

37  Ed.  3,  c.  IB.  '  II  est  cnnteine  en  le  grand 
'  Charter  que  nul  setra  imprison,  ttc.  ils  que 
'  font  tiel.  Sec'  38  Ed.  3,  no.  10.  '  Les  comens 
'  priont  que  le  grand  Charter  et  les  autres  Bta-  > 
'  tuts  toient  execute  at  que  breves  serront 
'  grauntez  al  cesluy  que  sue  pur  ceo,  et  li  ascun 
'  Judgment  soit  fait,  il  serra  void.' 

I'hiLTsda;  the  Islof  May,Mr.SecretaryCook 
delivered  a  Message  &om  his  majesty,  vii.  to 
know  whether  the  house  will  rest  ou  his  Royal 
Word,  or  no,  declared  to  then  by  the  Lord 
Keeper;  which  if  they  do,  be  assures  them  It 
shalJ  be  royally  performed. 

Upon  tliis  there  was  a  silence  for  a  ftood 
space  I  then<Mr.  Secretary  Cook  proceeded: 
This  silence  invites  me  to  a  further  speech,  and 
further  to  address  myself;  now  we  see  we  must 
grow  towards  an  issue.  For  my  part,  how  con- 
fident I  have  been  of  the  good  issue  af  tliitpar- 
Unment,  I  have  certified  in  this  place,  and  ebe- 
vrhere,  and  I  am  still  confident  therein ;  I  knnir 
his  majesty  is  resolved  to  do  as  much  as  evtr 
king  did  nir  bis  sabjects  :   all  thit  debate  halh 

Srown  out  of  a  sense  of  our  sufferings,  and  « 
esire  to  make  up  again  those  breaches  that 
have  been  made. 

Since  this  parliament  begun,  hath  there  been 
any  dispense  made  of  that  which  hath  tbrmerly 
been  done  P  When  means  were  denied  bis  n)n<. 
jestj,  being  a  yonng  king,  and  newly  come  to 
his  crown,  which  he  found  engaged  in  a  war, 
what  could  we  expect  in  such  necessities?  His 
m^estj  called  this  parliament  to  make  up  the 
breach :  his  majesty  assures  us  we  shall,  not 
have  the  lily  cause  to  complain ;  he  assures, 
the  laws  sbnll  be  established,  what  can  we 
desire  mare;  all  is,  that  we  provide  for  pns- 
teriiv,  and  tliBt  we  do  prevent  the  like  snBering 
for  the  future. '  Were  not  the  »«me  means  pro- 
vided bv  them  betbru  us?  Can  we  do  morc^ 
We  are' come  to  the  Liberty  of  the  Subject*, 


in] 


STATE  TRIALS,  S  Charles  I. 


■ad  tbc  ProtigMlte  oT  the  King;  I  hope  we 
■hiU  not  add  any  thing  u>  ourselves,  to  depreu  . 
iHm.  1  vill  not  dinae,  I  think  ne  iliall  find 
didia]lt}>  with  the  king  or  triih  the  lords;  I 
■bill  not  deliver  my  opinion  u  a  couniellor  to 
hi)  nujestj,  wbicb  I  will  not  juMifjr  and  say 
here,  or  it  the  Council-hoHrd.  Will  we  in  this 
DKciitif  girive  to  bring  ourselves  into  &  better 
condition  and  greater  liberty  thnn  our  fhlhi'M 
W,  and  the  crown  into 'a  worae  than  ever?  I 
dare  Bot  adviie  his  majeaty  to  admit  of  that : 
If  thb  that  we  now  desire  be  no  innovation,  it 
isallconlained  in  tboie  actaand  statutes;  and 
vbatwever  else  we  would  add  more,  isadiiniiiu- 
tiea  to  the  kind's  power,  and  nn  additlun  to 
our  own.  We  detU  with  a  wise  and  prudent 
priiie^  that  hath  a  iword  in  hia  hand  for  our 
|Dod,  and  chia  t;ood  is  supported  bj  power. 
Do  not  think,  diat  by  cases  of  law  and  debate 
tn  can  make  ihat  not  to  be  law,  which  in  ex- 
jmience  we  every  day  find  ncccisarj,— Give 
me  leave  fnely  to  tell  yon,  that  1  know  by  et- 
peneace,  ihat  by  tht  place  I  hold  under  his 
majesiy,  if  I  will  diachnree  the  dutyofrny  place 
and  the  oath  I  have  taken  [o  his  mnjesty,  I 
most  commit,. and  neiiher  express  the  cnuse  to 
tlie  poler,  nor  to  the  judgm,  nor  to  any  cuiin- 
•ellor  in  England,  but  to  the  king  himself;  yet 
do  not  think  I  go  without  ground  of  reason,  or 
laka  this  power  coEmnitted  to  me  to  be  un- 
tiniiedj  yea,  rather  it  ia  to  me  n  chaj^e,  bur- 
Ibec,  and  danger  :  for  if  I  by  this  pofi  er  shall 
conunit  the  poorest  porter,  it  [  do  it  nnt  upon 
ijostcnow,  if  it  may  appear,  the  burthen  will 
fall  upon  me  heavier  than  the  law  can  Inflict,' 
fori  shall  lose  mj  credit  with  his  majesty,  and 
■>y  place.  And  I  beseech  you  consider  whe- 
ther diaae  thai  have  been  in  llie  aame  place  have 
not  committed  freely,  and  not  any  doubt  made 
of  it,  nnrany  complaiDt  made  by  the  subject. 

Sir  Ratert  Fhiilipt  hereupon  &pake  thu): 
That  if  the  acords  of  kings  strike  impressions  in 
the  hearts  of  subjects,  then  do  these  words  upon 
this  aceasion  strike  an  impression  in  the  hearts 
afusall:  to  ^eak  in  ■  plain  langaage,  we  are 
mm  come  to  the  end  ot  our  journey,  and  the 
*etl  disposing  of  an  Answer  to  this  Mfa&age,  will 
pre  happiness  or  misery  to  this  kingdom.  Let 
'  M  Mtthe  commonwealth  of  England  before  the 
tjt%  iif  hii  mnjesty,  that  ve  may  justify  onr- 
wlies,  ibat  wehave demeaoed  ourseli        ' 


*lh  to  his  majesty. 
Br.  Hat;      '■  '' 


HacluctU  of  Lincoln's-Inn,  1  May,  1628, 


Sir;  I  cboae  ntlier  to  diicorer  my  weakness 
ki  ifieaklng,  than  to  betray  my  conscience  b^ 
uienee:  my  opinion  is,  that  we  shall  dowel 
totally  to  omit  nur  Resolution  nut  of  this  Bill 
tad  rely  only  span  a  conlirmatinn  of  the  laws 

The  Objections  mude  a^inst  this  opinioi 
■re two.  The  first  is,  that  we  sliatl  thertby 
Rcede  fram  our  own  Reiolution. 

'fbe  second,  that  by  a  biire  confirmation  oi 
ibeold  laws,  without  inserting  nfonr  Resolution, 
by  way  of  eiplanatino,  we  shall  be  but  in  tlie 

For  tbe  fitit,  thM  though  we  detire  only  a 


1(323.— **e  Liberii/  qftke  SubjKt.  [ITS 

confirmation  without  addini;  of  our  Resolution, 
do  not  thereby  recede  from  our  Resolution, 
:asoD  thu)  :  Our  [tj»olution  was  drawn  out 
LhescnseoftliosebwSjWhich  are  now  desired 
be  confirmed,  S'>  that  no  questinn  can  be 
made  by  any  of  us  thai  have  tlms  ileclared  our- 
selves, but  that  our  Ecsn lotion  is  virtually  con- 
tained in  the^c  laws.     If  ihat  be  so,  how  can 

acceptance  of  a  confirmation  of  these  laws     ■ 
be  a  departure  from  our  Eesolntion  f — Nay,  ra- 
ther we  think  the  contmry  is  true;  he  tiuit 
doubt!!,  that  by  coufinnntiori  of  these  laws  our 
Resolution  is  lint  hervhy  confirmed,  d<iuhls  wbe- 
ther  we  have  justly  deiluced  nor  Hesolutioiis  oirt 
of  those  laws,  nrtd  so  calls  our  Resolution)  into 
(jueitiun, — This  argument  alimc  is.  in  my  opi- 
on,  ft  full  answer  to  that  first  Uhjcction,  that 
desiring  a  bnte  ronlirmntinn  of  those  laws, 
r  depart  from  our  Rr  solutions. 
The  second  OUJeciiiin  is,  that  if  we  have 
nothing  but  a  cnnNnn-.tiun  we  are  In  no  better 
case  than  wc  were   I  (lore  th'<¥e  late  tirdatiuns 
of  the  law.    This  I  deny,  and  do  confidently 
1,  that  although  vcc  hnve  no   mure  than  a 
rtnation  of  tliose  Inns  wbi<  h  arc  recited  in 
the  bill  that  is  now  before  us,  vve  shall  depart 
hence   in  far  hetlir  cnte   than  we  CMme,  and 
in  divers  respects. 

Some  of  the  laws  recited  in  this  Bill,  aqd 
desired  to  be  confirmed,  are  not  printed  laves, 
nd  are  known  to  few  professors  of  the  law, 
nd  much  lets  to  others,  and,  yet  thev  ars 
iws  of  as  great  ennsfqucnee  for  the ,  J.ibtrty 
of  the  Sutjecf,  if  not  of  greater,  tbaa  any 
that  are  printed:  as  namely  35  I'^iv.  3,  no. 
1.  '  That  Loans  agiiin^t  t^e  w  ill  of  the  lender 
are  agniu^t  reason  and  the  freedom  of  the 
realm.'  36  F.d.  3,  no.  9,  by  which  Imprisoti- 
ments  by  spcrial  commandment  without  due 
process  are  forbidden.  -  These  two  are  not 
printed.— That  excellent  law  De  Tallegio  aoa 
corKtdcndo  in  prim,  hath  in  a  public  court  been 
by  a  ([rest  counsdldr  said  lo  be  bui  a  Clinner, 
and  no  law.— :The  statute  1  Rich.  3,  apinst 
Benevolenctvis  ^'S  some  opinions  in  prmt  an 
absolute  law.  If  we  can  get  all  these  good 
laws,  besides  those  six  other,  which  are  ex- 
positions of  Mai?na  Charta,  in  the  point  of  the 
freedom  of  our  persons,  to  be  confirmed  and 
put  in  one  law,  to  the  easy  view  of  all  men,  ia 
not  our  case  far  better  than  wbcn  we  caine 
hither? 

3.  Will  not  the  occasion  of  the  maliug  of 
this  law  of  confirmation,  so  uiitorioualy  known, 
be  transmitted  to  all  posterity?  Cettaitily  it 
will  never  be  forgotten,  that  the  occasion  there- 
of was  the  imprisonment  of  those  loriliy  Gen- 
tlemen for  not  lending,  and  the  Resolution  in 
the  Ki»t'i-Beneh  in  denying  to  bail  them ;  and 
is  not  tfie  occasion  of  the  making  of  a  law  a 
good  rule  f)  expound  it?  If  so,  then  by  giving 
a  contirmHtion  upon  this  occasion,  wc  have 
beitereri  our  case  very  much. 

3.  Have  not  the  Jutlges  in  the  King's- Bench, 
in  open  parlinment,  upon  out  complaint,  dis- 
claime.l  io  linve  given  any  Jud!;ment  in  tin 
poiat  ?    Which  generally  belprc  by  the  pnrlia- 


ITJ]  VTATE  TRIALS,  sC^UlesI.   l6(iB,—Proctedmgi  in  PurliaaKiiH^Mtiag  Io  [IcO 
And  10  ttie  d>j  fbUowinfi  tiiey  had  &nh9f 


ineot  waa  otlienvise  coateived^  for  now  the* 
saj.iiwMbuinD'Award  and  no  Judgment,  will 
luch  B  DoiorioLU  net  upon  so  impuitant  an  oc- 
casion in  so  public  a  place  be  quickly  forgot- 
ten ?  Nay,  vJill  nol  ihe  memory  of  it  for  ever 
remain  upon  record  f  Is  not  our  ca&e  then 
much  better  then  ivhf  n  we  came  hither  ? 

4.  Will  not  ihe  UemluCion  of  tliis  home,  and 
nil  our  srsuments  and  reasons  against  impri- 
ionment  without  a  cnuse  expressed  (wliicli  no 
doubt  by  tbe  course  ite  bate  cuben  uill  be 
transferred  to  postprity)  be  n  great  means  to 
nay  any  Judge  hereafter  from  decUrlng  or^ 
judgment  lo  the  miiCiary,  especially  if  there 
De  likelihoud  of  a  pnrliaiuent  i  Is  not  our  case 
in  this  very  much  uneuded  ? 

Lastly,  Have  we  noc  received  Propositioai 
from  the  lunU,  therein,  amongst  other  tUngj, 
they  declared,  that  they  are  not  out  of  love 
with  our  proceedings?  Is  not  lliis  a  ueat 
strengthening  to  it?  But  after  so  lung,  d^te 
snioogst  them  about  it,  they  cauiiot  take  any 
just  exception  lo  it;  and  dolh  not  this  also 
^uch  amend  our  case  ? 

From  all  these  reasons,  I  conclude  that  the 
lecnnd  Objection,  that  by  a  confirmation  we 
■re  in  no  better  case  than  when  ne  came  toge- 
ther, is  also  a  weak  ohjeclion. 

Now  for  Reasons  to  move  us  to  proceed  in 
this  course  of  accepting  o  confirmation;  ].  We 
'  have  his  majesty's  gracious  promise  lo  yield  to 
a,  conlirniation  of  the  old  laws,  fram  which  we 
ID ny  rest  mo^t  assured  he  will  not  depart;  if 
Ve  tender  him,  withal,  our  Pniposicinn  to  be 
eaacted,  we  have  cause  to  doubt  that  we  shall 
lose  both  the  one  and  the  other.  3.  We  are 
no  less  assured  of  the  lords  joining  with  us,  for 
in  their  propositious  sent  to  us  tJiey  have  deli- 
Tered  clieinselves  to  that  purpose  :  this  is  then 
B  secure  way  of  getting  somewhat  of  great  ad- 
vantage to  us ;  as  we  have  gi;eat  hopes,  and  in 
B  manner  ataurauce  on  this  side ;  so  on  the 
other  side  we  have  great  doubts  and  fears,  that 
by  offering  our  Resolution  to  be  enacted,  we 
shall  lose  all. — For  first  we  have  bad  already 
experience  of  the  lords,  tliat  (hey  are  not  very 
forward  to  join  with  us  in  a  declaration  o(  our 
Proposition  to  be  law ;  if  they  stumble  at  a 
declaration,  much  more  will  they,  in  yielding 
to  make  a  law  in  tbe  tame  point.  And  have 
ue  not  much  more  cause  to  doubt  that  his  ma- 
jesty will  not  yield  unto  it,  seeing  It  toucheth 
him  so  near^  Is  it  nol  tlit  notice  of  his  plea- 
sure that  hath  wrnught  ihuc  with  the  lords  1 

If  we  shoi^d  clog  out  Rill  with  our  Proposi- 
tion, and  it  should  be  rnectcd  by  the  lords,  er 
by  the  king,  is  not  oar  Resolution  much  weak- 
ened by  it;  aiul  are  we  not  then  in  far  worse 
case  than  before  we  made  it?  OurResohition 
for  the  rejecting  of  our  Prupositioo,  will  tend 
to  a  justification  of  alt  tliat  hath-  been  done 
'against  ui  in  this  great  point  of  our  liberty.^— 
Let  us  then,  like  wise  men,  confoim  our  desire 
to  our  hope*,  and  guiilc  our  hopes  by  probabi- 
lities; othet  [lesircs  and  other  liopes  arc  but 
This  ii  my  poor  opinion  iu  thia  weighty 


debate  upon  that  matter,  the  house  being 
turned  into  a  Grand  Commitiee,  and  Mr.  Ucv- 
beri  in  the  chair.  Some  said  that  tbe  Sulgect 
has  suQered  more  in  the  violation  of  ancient 
Liberties  within  these  &w  jeal^  (ban  in  300 
yenis  before,  and  therefi>re  care  ought  to  be 
taken  for  the  time  to  come. 

Sir  Xdaard  Coke  said,  lliat  that  '  Royal 
Word,  had  retcreuco  to  some  Message  (9r- 
merly  sent  ;  his  majesty's  word  was,  that  tbey 
may  secure  themselves  any  way,  by  bill  or 
otherwiEe,  he  promised  to  give  way  to  it.  An^ 
to  (he  end  that  this  might  not  touch  his  oi^es- 
ty's  honour,  it  w'as  proposed,  (bat  the  Bill  come 
not  from, the  house,  hut  from  the  king:  We 
will  awd  grant  fiir  in  and  qui  soccesson,  and 
that  v-e  and  our  successois  will  do  thus  and 
thus  ;  and  it  is  the  king's  honour,  ha  cannot 
speak  hut  by  record. 

Others  desiied  the  houM  to  consider,  when 
and  where  ttie  late  promise  nas  made ; '  was  it 
not  in  tlie  face  of  both  houses  p  Cruel  Lia^ 
have  been  careful  la  perform  their  promise^ 
yen,  though  they  have  been  unlawful,  at 
Herod.  'I^ierefore  if  we  reat  upiin  his  msjet- 
ty's  promise,  we  may  assure  ourselves  of  tbe 
performance  of  it;  besides,  we  bind  his  m*- 
jesty,  by  relying  on  his  word  :  we  have  laoa 
enough,  it  is  the  eiecuiioo  of  them  Iha^  is  our 
life,  and  it  is  the  king  that  gives  IjCe  and  exe> 

Sir  Thomat  Wentaorth  concluded  the  debate, 
snyini;.  That  never  house  of  parliament  trusted 
mnre  in  the  goodness  of  their  kio^  for  their 
own  private  aocouut,  than  tbe  present;  bat 
we  are  ambitious  that  his  msjasiy's  goodBcw 
may  remain  to  posterity,  and  we  an  accounta- 
ble to  a  pubUc  trust  i  oad  therefore  seeing 
there  hath  been  a  public  violation  of  tbe  law* 
by  his  ministers,  nothing  will  aetitfy  bim  but  & 
public  amends ;  and  aur  detirit  ia  vindicate 
the  Subjects  Right  liy  Bill,  are  no  more  tbaa 
ore  laid  down  in  former  laws,  with  some  modest. 
provision  for  instructiau,  pertbnoauce  aud  exe- 

Which  so  well  agreed  with  the  sense  of  th« 
house,  that  they  made  it  the  lul^iect  of  a  Mes- 
sage to  ba  delivered  by  tbe  Speaker  to  bis  ma- 
jesty. 

Amidst  those  deliberatioas,  aootber  Me»- 
sage  was  dalivered  May  9,  Irom  his  uugcs^,  hy 
Mr.  Secretary  CnoL  ;  "  That  hnwsoev^  w« 
proceed  in  this  business  we  have  in  hand, 
which  his  majesty  will  not  doubt,  but  to  be  lu- 
cording  to  our  constant  profin^ion,  and  so  as  bs 
may  have  causa  to  give  us  tliai>ks  ;  yet  his  re- 
solution is,  that  ^tb  his  royal  core,  and 
hearty  and  lender  affectioD  towards  all  his  lov- 
ing Euhjccrs,  shall  appear  to  the  whole  king- 
dom, and  alt  ihe  world,  that  he  will  govero  ua 
according  lo  the  laws  aad  castoms  of  thia 
'm  ;  that  he  will  maintain  us  in  the  ijb«r- 
of  out  Persons,  and  Proprieties  of  gur 
Goods,  so  as  we  may  enjoy  as  much  happineu 
lie  fotr&tlKn  m  tMU  hast  tima^i  jmM 


mj 


STATU  TRIALS,  3  Cmakleb  I.  l«U3.~t&e  Libet^  ^tlt  Sdyeel, 


n» 


&*l  ha  will  naitj  nbat  Imlh  Ixrn,  or  maT  be 
fand  ainiu  lunoagK  ui,  u  tli»t  bermficr  thet« 
Mf  bano  jtuteaow  h>  contpUin.  Wbercin 
n  ba  M^eur  oil!  rank  himieir  ainoni^st  ih« 
bnt  of  aur  kinp,  and  ikew  lie  bath  no  iiiten. 
Don  to  invada  or  impeach  our  Uwrul  liberties, 
orrigbt;  ••  b*  will  have  ua  motch  aurvcliel 
with  ihe  bmt  nibjecta,   not   hj   ancmacliinfc 

rEbat  savcre^tj  idcI  prortigative,  whicli 
.  haih  put  ioto  his  bandi  for  o»r  tpai\,  but 
fcj  canuiiitng  oiir<elTe«  within  the  bound*  »nri 
(twi  of  o4ir  ropa-faihen,  oithont  reatraining 
Aem,  or  enlarginf  the<n  bj  new  eipknation^ 
interpretation!,  expotitioni,  ur  addiiiont  in  uaj 
■art ;  whiefa,  br  tctlMh  at,  he  will  not  give  wn^ 
«ato.— Hwt  the  vngbc  of  the  affiin  of  the 
kttgdvn,  and  Cfanitcndom,  do  pvete  him 
and  raore,  4nd  that  the  tioio  i>  now  sroa 
ihu  point  of  matartty,  that 
Ing  debate  or  ie\wy ;  so  as  this  cesaion  of  par- 
fiuaeat  niuM  oontinue  no  longer  thnn  Tuesdny 
CMM  seveH-n>ebt  at  farthest:  in  which  time 
tisMJeUy,  (or  his  part,  will  be  rendy  to  per- 
Arai  what  he  promised ;  nod  if  tli«  house  be 
w«  ra«d]F  to  ilo  that  i*  fit  far  thaaulve',  it 
iWI  be  tlicir  Q*n  ranlts. — And  upon  aitur- 
'  ~  ir  eood  dispsAoh  and  oorroipondence, 
w  oKlaretli,  that  bii  tojbI  intention 
ue  •nother  teasion  of  parliament  at 
HichaelnMs  neat,  ki  the  perfecting  of  luch 
Ifcogi  ae  oaiinot  now  be  done." 

This  MeasaM  was  debated  the  am  daj,  b»- 
BfSatuidaj,  Msj  3,  wheraopoii 

Sir  JoIm  Eiliol  spake  to  itis  effect :  The 
kia^  taith  be,  will  rank  hisDelf  wlih  the  besl 
ef  bn^,  aad  therefore  he  would  have  u9  rtnk 
mimImj  with  the  beat  subjects ;  we  will. not 
iaaoailfa  upon  that  MTereignty  that  God  hatb 
fW  into  hi*  hands ;  this  makee  me  fear  his  mu- 
}«tj  is  rais-in formed  in  what  we  go  abooi ; 
let  OS  make  some  enlargement,  and  put  it  be- 
fcic  him,  thftt  we  will  not  make  an^  thing  new. 
ta  for  Hie  time  of  this  sessioB,  it  is  but  short ; 
Hd  \«tA  how  many  messages  we  have,  so  mnny 
fatemiptiohs,  and  rota  repnrlB,  and  mis-repre- 
Metalfone  to  hie  Dafjesty  produce  tbos«  mea- 


X. 


r  MiUt  FfttttBOod  ontinued  the  debate, 
,  and  said.  That  this  bnainesi  is  of  great  impor- 
tincr,  we  are  to  accommodate  ibis :  tbe  breach 
«f  tliit  paHiatnent  wiU  be  tbe  greatest  raiierj 
that  ever  beftdt  us:  the  eyes  of  Chrbtendofn 
■reopon  this  pnttiitnient,  the  stftte  of  all  our 
Pre(MtM>t  fhenda  are  ready  to  be  swallowed 
op  \fj  the  emperor's  forces,  and  oar  own  king- 
dom is  in  a  miserable  wratt,  for  (he  defence  of 
aartebfion  that  is  invaded  by  the  Romaa  Ca- 
Aalics,  by  tbe  cek>uT  of  a  comoiisajon,  wh)«h 
b  intolembte ;  the  defence  of  our  re*lin  by 
«hippin;l;s  W  decayed,  the  kin^s  revenue  is  aok) 
•ndgene;  where  shall  the  relief  be  obtained 
tntin'pafliwvent?  Now  we  are  in  the  way,  let 
W  proceed  by  way  of  bill,  in  panuanoe  of  tbe 
linifa  iiie»«4;e,  to  establisb  tbe  Amdamcntal 
••■s  in  propriety  r(oar|;ood«,  and  liberty  of 
nor  persona ;  It  wna  deckred  to  aa,  *  that 
*  Mawsi  by  Laaa 


'  lawiHil ;'  let  ui  touch  ibem  in  our  Bill,  and 
that  all  precedents  and  judaments  weioing  to 
the  contrary,  be  vuid  ;  and  ihat  all  commit- 
ments ngaiiist  tlie  law  be  remedied,  and  that 
we  be  piatecied  ngaiiul  ihe  lear  of  commit- 

Mr.  Mtanii'i  Sptic\. 

I  nm  of  ojiinion  wiili  the  gentleman  (bat 
spake  lint,  ibat,  in  nur  proi:eedin|[S  in  tbe  mat- 
ter now  IB  dchnie,  ue  should  have  u»e  of  the 
title  of  the  ataiuie,  calleil  cirnunipgcle  agatii; 
for  it  concerns  tbe  Liberty  uf  onr  persons,  witlih- 
out  ivliici)  we  do  n»t  enjoy  our  Jivea. 

The  Question  is :  \Vhether  in  this  Bill  for 
the  explanation  of  Majjna  Cbana.  and  tlieves 
iil'lliestalutrs,  we  ^aH  provide  that  the  oanie 
of  the  commitment  mu^t  be  expressed  upon  the 
coinmitriient,  or  upon  return  of  the  Habeas 
Corpni  t 

Before  I  ^eak  to  (he  quMiion  itaelf,  1  shall 
propose  some  obscrvatinns,  in  mj  conceit,  ne- 
ceasarily  conducing  to  tlie  debate  uf  tlie  mutter. 

].  That  we  ought  to  ukerare,  and  to  pro- 
vide for  posterity,  ns  our  predecessors  hare 
done  for  us,  nnil  that  this  provident  care  can- 
not be  eipoun4e(l  tu  he  luiy  distrust  of  tbe 
performance  of  his  innjesly's  gracious  derlnra- 
lian,  this  act  providing  liir  perpetuity,  to  which 
his  highness's  promise,  unlets  ii'were  hj  act  of 
parliament,  cnnnot  extend. 

e.  That  wa  having  long  debnted  and  so- 
lemnly resolved  our  rights  and  privilwea  by 
virtue  of  these  statutes,  and  if  no*  »e  thall  re- 
duce those  declarations  and  those  rtsoliitiont 
into  an  net,  we  mutt  ever  hereafter  expect  to 
he  confined  within  the  bound*  of  that  act,  be- 
ing raadc  at  onr  suit,  and  to  be  tbe  limits  of  tli* 
prerogative  in  that  respect,  and  it  being  an  act 
of  explanation,  nbich  shall  receive  do  further 
explanation  tban  iis^f  contains. 

3.  Hutt  by  this  act  we  must  provide  a  re- 
medy Bgaiost  the  pcrxoas  whicn  detain  us  in 
prison,  ^r  as  to  tbe  commander,  there  can  be 
no  certainty. 

Concerning  ilie  Question  itse].f : 

It  hath  .been  aiilemiily  and  clearly  resolved 
by  tbe  house,  that  tbe  commitment  of  a  IJ'ree- 
man,  ivithout  expressing  the  cnuse  at  tbe  time 
of  tbe  commitment,  is  against  the  law:  If  by 
this  act  of  explanation  we  sbull  provide  only 
that  the  cnuse  ought  to  be  expresstd  upon  the 
return  of  llie  H.  Corpus,  then  out  of  the  words 
of  the  stiuate,  it  will  seeessaiily  lie  iuferrei<, 
that  before  the.  return  of  Ihe  H.  Corpus  the 
cause  need  not  to  be  expressed,  because  tba 
statute  batb  appointed  tbe  time  of  the  cx|>rps- 
sion  of  the  cause ;  and  it  will  be  construed, 
that  iftbemakenofthestntuiesbad  intended 
(hat  the  cnose  should  have  been  sooner  shewn, 
thty  would  have  provided  for  it  by  the  act,  and 
then  tbe  act,  wliicb  we  Una  an  act  of  explana- 
tion, will  be  an  act  of  the  abridging  of  ftlagin 
Chartn,  end  the  rest  of  ihe  statutes :  or  if  ibis 
act  do  not  make  the  commilirieDt  without  ex- 
pressing ihe  cause  to  be  lawful,  yet  it  wiU 
clearly  amooat  to  a  toleration  of  the  commit- 
dent,  trithout  exprewng  the  c«iit^  uacil  the 


1S3]  STATE  TRIALS,  SChiulbiI.  ms^Procadins*  in  PadUment  rOatiiv  to  [IM 

H.  Corjius,  nr  to  a  gcoeralor  perpetual  dit' 

EeouitiuD,  begiuaing  wiih  and  cuntinuing  as 
>iie  M  ihclaw  ilsulf.  And  id  my  undemanding 
the  wonls  in  this  inieiided  !iiw,  ilmt  no  tVeeinaii 
con  lie  commitied  nitliout  cause,  can  no  ways 
adjantnge  us,  or  satbfy  this  objection ;  for  iill 
the  retutn  of  the  H.  Carpus,  he  thiit  conimlis 
isJudgel1^tJleca^si^,  orat  least  htilh  a  licence 
by  tfiis  law  lUl  tbat  time  to  conceer  ihe  come, 
and  the  RBRler  U  nut  subject  lo  any  aaion  for 
the  detaining  of  the  (jritoner  upon  such  com- 
mand. For  if  the  prisoner  demanded  the  cause 
ofhisimprisoDiiii-nt  of  the  gaoler,  it  nill  lie  a 
safe  answer  lor  liim  tn  say  tbat  lie  ditaii.s  a 
prisoner  bj  warrant,  and  that  it  belong*  not 
unto  bim  lu  desire  those  whicli  comiiiit  tlie  pri- 
soner iosbe»  ibc  cause  until  he  rclurns  tbe  H. 
Corpus.  And  if  tlie  ptiinn«'  be  a  suitor  to 
know  the  cause  frini  those  thiit  comniilled  him, 
It  nill  be  a  suUicieut  answer  for  tliem  to  s.iy, 
■  hcywill  eipn:sE>  the  cause  at  the  return  of  the 
TI.  Corpus.  In  this  case  there  will  be  a  wrong, 
bec;iuEa  the  comtnitment  it  without  cause  c%- 
prsssed,  and  one  that  suffers  ihat  wroug,  vii. 
the  party  imprisoned ;  and  yet  no  surh  wring- 
doer  but  limy  excuse,  if  uotjuitify  himsdf  by 

In  mailing  of  laws,  »c  must  consider  the 
incunfcnieuces  »hich  tony  ensue,  and  provirle 
for  iht:  prevention  of  them',' '  lex  caveat  de 
'  futurii.'  I  have  taken  into  my  thoughts  some 
incitfiTrnieuces  which  I  shall  cjpa«e  lo  your 
considerations,  not  imagining  that  they  can 
happen  in  the  time  of  our  gracious  sovereign  ; 
but  in  an  act  of  parliament,  we  must  provide 
for  tbe   prerentiun  gf  all  inconveniences    in 

1.  If  aman  be  iudangerto  beimpri^oned  in 

the  bcginniug  of  a  lung  viication  for  refusing  lo 

pay  some  siukII  sum  of  money,  and  knows  That 

by  this  act  he  can  liave'iio  inla^ement  till  tbe 

rettjra  of  the  II.  Corpus  in  tlie  term,  Hu.^  that 

(be  charge  of  his  being  in  prison,  and  of  bis  in- 

Inrgeuient  by  H.  Corpus,  will  nmount  to  more 

than  ibe  sum,  he  will  patt  wilh  moue;  to  pre- 
,venl  hiu  impri^onrntnt,  or  to  redeem  himself 

thence,  because  lie  cannot  say  any  man  doth 

hira  wrong,  uuiil  tlie  return  of  the  11.  Corpus, 
■  and  the  Inw  resoliea.     A  man  will  pay  a  fine 

rather  than  be  imprisoned',  Ibr  the  judgment 

which  is  givcu  when  one  is  lined,  is  idiocapia- 

tor,  and  ihe  execution  for  debt  is  a  cupiai  ad 

tatufacitndKm  ;  the  bw   presunling  any  man 

will  pan  with   his  money  to  gniii  his   liberty. 

And  if  the  prisoner  pr«cui«  an  H.  Corpus,  and 

lie  brought  into  the  King'i-bench  by  virtue  of 

tl,  yet  the  catisc  need  not  to  he  then  expressed ; 

the  provision  of  this  law  heine,  tlial  if  no  cause 

be  then  expressed,  be  sliall  be  bailed,  and  no 
rcauaebeiiigbhenn  upon  (be  return  of  the  H. Cor- 
pus, yei  it  uny  be  pretended,  that  nt  the  time 

of  his  commitiiiint  ther.i  weresirong  presump- 
tions of  ^me  great  ottence,   but  upon  exami' 

nation  tliey  are  cleared:   or  it  may  be  said, 

tbat  tlie  ri'lTence  was  of  ibat  naiiire,  that  tbe 

time  of  liis  imptisnoment  bel'ute  the  return  was 

a  suiiiciciit  puiii'bnieiiL     And  we  may  be  fre- 


quently imprisoned  in  tliia  nisnn«r,  and  never 
underitaiui  tbe  cause,  and  have  often  tuck 
poniibmeiit,  and  have  no  means  to  joitify  our- 
selves; and' for  all  tliete  proceedings  this  law 
will  be  tliejustilicatiat),  or  colour. 

S.  If  by  this  act  there  be  a  toieratioa  of  im- 
prisonment wiibuut  shewing  caase,  until  the 
return  al  the  U.  Corpus;  yet  it  it  potstble  to 

npany  that  inipris'ininent  with  sucb  cir^ 

tances  of  close  restraint,  and  other  hanl- 
shipi,  which  I  forbear  to  express,  M  m«y  oiakc 
an  imprisunment  for  that  short  lime,  as  great  a 
punitlunent,  as  a  perpetual  imprisonment  iu  au 
ordinary  manner. 

3.  The  party  may  be  impriioaed  a  long,  time 
before  he  shall  coine  to  be  delirered  by  thii 
law ;  the  place  of  his  imprisonment  may  be  in 
the  furthest  part  of  this  kingdom;  the  judges 
always  make  the  return  of  the  U.  Corpus  a»- 
sw«~jble  to  the  distance  of  the  prisou  from 
Wesiminsier ;  the  gaoler  may  neglect  tbe  re- 
luni  of  the  first  procest,  «iid  then  the  ptrty 
must  procure  an  Alias,  and  the  gaoler  may  be 
then  in  some  other  employment  for  the  liin^ 
and  excuse  tbe  nut  returning  tlie  body  upo> 
ihnt  process ;  and  this  may  malte  the  imprison- 
ment for  a  year.  And  in  tlie  end  no  cause 
being  returned,  the  party  may  be  discharged; 
' -"   in  the  mean  lima  bo  shall  have  impnsoD- 

.,  he  sliail  never  know  ibe  cause,  be  >hatl 
no  reniedy  for  it,  nor  be  able  to  questioa 
any  for  injustice,  which  have  not  ajiutibcaiioD, 

:cuse  by  tbis  taw. 

Tbe  party  may  be  imprisoned  during  hit 
hfe,  and  yet  there  shall  be  no  cause  ever  shewn, 
I  wiil  instance  in  this  luaiAier:  a  man  may  bt 
committed  to  the  furthest  part  of  the  kiDgdgn 
Westward;  be  obtains  an  11.  Corpus;  before 
the  )iaoler  receives  the  U.  Corpus,  or  before 
be  returns  it,  the  prisoner  by  warrant  is  re- 
moved from  that  prison  to  another,  it  may  be 
tbe  furthest  Northern  pan  of  tbe  realm.  The 
lirst  gaoler  returns  tbe  special  matter,  which 
will  he  EuUcieni  to  free  himself,  and  in  hke 


be  a  peregrin iition,  or  wayfaring  from  one  gBaJ 
lo  another,  and  be  shall  never  know  the  cause, 
nor  be  able  to  complain  of  any,  who  cannot 
defend  their  actions  by  this  bill. 

,5.  If  the  prisoner  be  brought  into  the  conrt 
by  II.  Corpus,  and  no  cause  eipreste«l,  sad 
tjiereapon  ne  be  inlarged,  he  may  be  parity 
committed  again,  and  then  his  enlargeoietit 
shall  only  make  way  for  hit  commitnuui : .  and 
this  may  continue  auiing  his  life,  and  be  shall 
ueverlmow  the  cauie ;  and  this  not  remedied, 
but  rather  permittedby  this  act. 

And  there  are  also  tome  things  rematkably 
considemble  inthis  matter;  the  eiptcceof  tlie 
parly  in  prison  1  his  fees  to  ibe  gaoler,  his  costs 
in  obtaiiiingand  prosecuting  an  Habees  Corpus, 
and  Ills  charaes  in  removing  himself,  attended  . 
with  such  as  have  the  charge  of  his  conduct : 
and  that  the  prisoner  must  sustain  all  tbis 
without  satisfaction,  or  knowing  the  cause. 

The  only  leatoo  pren  by  those  of  the  vt^e* 


181]        ffTATE  TRIALS,  3  Cbabl£s  I.  I  (i'2S.—the  Libels  <f  ihe  SutiftA. 


(1S« 


spioiDa  is,  Thnt  it  is  rcqDiake,  the  king  and 
ouncil  should  have  ptnrer  to  cimiiiiBDd  the 
itaunaol  a  maa  in  piisoa  for  some  time, 
■itkiuteipinsing  the  cause ;  because  it  is  sup- 
naot,  ibai  the  manirestatioa  of  the  cause  at 
tat  maj  prevent  the  discovery  of  a  treason. 
Hm  reMon  is  answered  bj  the  remedy  pro- 
ptod;  bj  this  act  it  beiuE  proposed,  that  it 
■lalt  he  praiided  b;  this   Sill,  that  upon   our 

Bibe  Chancery  for  an  U.  Corpus,  relQisable 
k  AmX  coatt,  which  is  alaaji  open  ;  and  that 
ipoB  the  receipt  thereof,  the  writ  must  be  re- 
'  tBoed,  and  Uie  cwiae  thenupoD  eiprelsed. 
If  then  tbb  remedj  be  reallj  the  cause  of  com- 
MmeDt,  itmuKpartljappeau-;  which  com  ra- 
dios liie  fbnner  reason  of  state. 

And  in  mj  own  opinion,  we  ought  not  qdI^ 
n  tike  care,  that  the  subject  should  be  deh- 
TOfdoGtof  prison,  bat  to  prevent  his  impriaon- 
ncM;  the  atalute  uf  Mi^tia  Charta,  and  the 
[T«  of  ibe  ac<B,  providing  that  no  man  ihculd 
kntpriuned,  butb;  thelaw  ofthe  iand.  And 
•Unu|htbe  king,  or  council,  as  it  hath  been 
•tjtcted,  hy  fbroc  may  commit  us  without 
ODx,  notwithstanding,  any  Tans  we  caumake; 
jetlaai  sure  without  such  an  act  of  psrlia- 
WBt,  such  conunitmaat  can  have  no  legal 
«)lntr,  and  I  would  be  loch  we  should  nuke  a 
1m  to  endanger  ourselves.  For  which  reasons 
Iranceive,  thai  there  being  so  many  ways  to 
trade  this  act,  we  shall  be  io  a  worse  ciue  hy 
i^thu  without  it ;  as  it  provides  no  remedy  to 
pRtent  our  imprisonment  without  expreasing 
At  cause  to  be  lawful^  and  administers  ext^set 
flit  continuing  us  in  prison,  as  I  have  before 
Mared.  And  thus  for  proridine  for  one  par- 
tic»lar  out  of  reawn  of  state,  which  possibly 
on  6lQ  out  in  an  see  or  two,  we  shall  sprlug  a 
Wik,  which  may   sink   all  oar  liberties,   uid 

ra  gap,  through  which  Magna  Charts,  and 
eu  of  the  Statulcj,  may  issue  out  and 
•Mi«b.  I  therefore  conclude,  that  in  my  poor 
■Bd«itandinf>  (which  I  snbmit  to  better  judg- 
■Hits),  I  had  rather  depend  upon  our  former 
RMlaiioDs,  anil  the. king's  grncioos  declarn- 
hoDi,  than  to  pass  an  act  in  snch  manner  as 
kiihbeen  proposed. 

In  roncloMon,  the  Commons  agreed  t 
Answer  to  all  the  preceding  Messages, 
prCKDied  it  to  the  king  by  tt^  mouth  of  their 

The  Speaker's  (sir  John  Finch)  Spekcbio  the 

Kin^  in  antwer  CO  several  MesHgea,  ii     ' 

Banqueiin^Housr,  May  5. 

Most  Gntcions  and  Dread  Sovereign  ;  Your 

1b]«I  and  obedient  subjects,  Che  commons  no 

NKBibled  in  pariiament,  by  several  Messagi 

inn  your  majesty,  and  especially  by  that  your 

declaration  ddivered  by  the  Lord-Keeper  be- 

jbre  both  boaies,  have,  to  their  exceediog  great 

'  jo;  and  comtort,  received  many  ample  expres- 

■ons  of  your  princely  care  and  tender  affec- 

ciofia  towards  them,  with  a  gracious  promise 

*Bd  tMorance,  that  yoar  n^jetcy  will  Bovem 


according  to  the  lawi  of  this  realm,  and  so 
maintain  ail  yoar  subjects,  in  cite  juH  freedom 
of  their  persons,  and  safety  of  their  aitatesiihat 
all  their  rights  and  liberties  may  be  by  them 
enjoyed,  with  as  much  freedom  and  security  ia 
their  lime,  as  in  any  age  heretofore  by  their 
ancestors,  under  the  best  of  vour  pn^nitors  ! 
for  this  so  great  a  favour,  enlarged  by  a  com- 
fortable intimation  of  your  majesty's  confidenc* 
in  the  proceedings  ot  this  hous^,  they  do,  by 
me,  their  Speaker,  make  B  full  reiurn  of  most 
hnmble  thanks  to  your  majeaiy,  »ith  all  dutifid 
Bcknowledgmeuc  of  your  grace  and  goodocit 
herein  extended  unCo  them. — Al^d.  whereas  in 
one  of  those  meuages  delivered  from  your  ma- 
jesty, ihere  was  an  expression  of  vour  drair« 
know,  whether  this  hnuse  would  rest  upoD 


really  performed ;  a*  they  again  present  theii 
humble  tlianks  for  the  iieconding  and  itrengtlH 
ening  of  your  former  royal  expressions,  so  in 
all  humbleness  they  assure  your  majeity,  that 
their  greatest  confidence  is,  and  ever  must  be, 
in  your  grace  and  ^odnefs,  without  which, 
cbey  well  know,  nothing  they  can  frame  or  de> 
sire,  will  be  of  Mfecy  or  value  to  them ;  there- 
fore are  all  humble  suitor*  to  your  majesty,  ihat 
your  royal  heart  will  giacioualy  accept  and  be- 
lieie  the  troth  of  theirs,  which  ihey  humbly 
present,  as  full  of  truth  and  cuufidence  in  your 
royal  word  and  promise,  as  ever  house  of  com- 
mons reposed  in  any  of  their  best  kings.— Trhe 
it  is,  they  cannot  but  remember  the  pnblic 
trust,  for  which  ihey  are  accountable  to  present 
and  future  limes  ;  and  their  desires  aie,  Thu 
your  majesty's  goodness  mi^hc,  in  fruit  and 
memory,  be  the  blessing  ind  joy  of  posterity. — 
Theysay  also.  That  of  late,  there  bath  been  ' 
public  violation  of  tlie  Laws,  and  ihe  Subjects 
Liberlies,  by  some  of  your  majesty's  ministers; 
and  thence  conceive,  that  no  less  than  a  public 
remedy  will  raise  the  d^ected  hearts  uf  your 
loving  subjects  to  a  cheerful  supply  of  your 
majesty,  or  make  then)  receive  content  in  the 
proceedings  of  this  hnutc. — From  these  cousi- 
derations,  they  most  humbly  beg  your  majea- 
ty'i  leave  to  lay  bold  uf  ihac  gracious  offer  of 
yours,  which  gave  ihem  assurance,  ihatifibey 
thought  lit  to  secure  themselves  in  their  Righis 
and  liberties,  by  way  of  Bill  or  otherwise,  f 


it  might  be  provided  with  due  re»pecc  to  Gud' 
honour,  ana  the  pablic  good,  -   '  i   ■ 

gracioosly  plensetf  to  give  way 
from  their  "■■ 


ltd   be 
Far 


is,  any  way  to  encroacb 
'jpon  your  sovereignty  or  prerngniitei  nor 
hnre  tbey  the  least  llioughi  of  strtti-hing  or  en- 
lairing  the  laws  in  any  sort,  or  ly  any  new  iu- 
leiprctations  or  ndditioiu ;  the  bounds  uf  their 
desires  eilenfl  no  further,  tliau  to  some  neces- 
sary eiplanalioo  of  that,  which  is  truly  com- 
prehended witliin  the  just  sease  and  nieMuing 
of  those  laws,  with  some  inudcrate  provision 
for  execution  and  performance,  as  in  times  past^ 
upon  like  occaMon,  hath  hetn  used.  The  way 
how  to  accomplish  these  their  bumble  desires^ 
is  now   in  Htioui  couidetatioa  nitb  thenis 


K1]  STAl^TRIAl^.  SChablmI.  \62a.—Pniatdiiig» it, Parliaiimt nlatins m  [IM 


wtierem  (key  humbly  ■nure  jmir  MJEKy,  they 
will  BcitlMr  loce  IJtue,  nor  teak  any  thing  of 
jDur  DM^Mty,  kit  th*t  tlicy  hepe  may  he  &t 
for  dutiful  and  loynj  lul^ects  tu  aak,  and  for  a 
p'aciuni  and  Just  king  to  grnnt. 
Hit  Majeitya  Airsw-cit  wm  dclitered  by  tb« 
Lofd-KeapcT,  Thuaai  Lord  Caventiy : 
Mr.  Spenter,  and  you  Gentlcraef)  of  tbe 
Hntse  of  Commont,  his  majesty  ha»  cota- 
■naiided  me  to  tell  you,  that  lie  eif«ct«d  an 
■luwer  by  yaar  actiont,  and  not  daby  by  dn-  , 
cbune :  ye  acknowled^  his  trmt  and  confi- 
dence in  yow  proceediagi,  but  hi*  maieKy  aeea 
not  how  you  rei)iitte  him  byyoarconadence  of 
tni  word  aad  aoliont ;  far  what  need  expli 
tioni,  if  ye  doubted  itot  ibe  ^rtbimanceof  the 
trae  meaning?  Inr  ezplniiatiam  will  hazard  an 
iacroadiaieiit  upon  his  prerogntice.  And  it 
nay  w«tl  be  iriiJ,  What  need  d  new  law  tD> 
etwGriD  Ml  old,  if  yoD  rvposeoonfidence  in  the 
decliiration  his  majesty  made  by  me  u  both 
bousea?  And  younelves  acknowledge,  that 
yoar  greatest  trust  and  confidence  must  br  in 
bi*  majetly's  grace  and  goodnen,  without  which 
BothinK  that  you  can  ^sme  will  be  of  safety, 
i>r  araitaMe  to  yon.  Yel,  to  shew  cienrfj  tt>e 
Mteeritf  of  hit  majeftr's  intentions,  he  is  oon- 
lent  that  a  Bill  be  dnwa  for  a  confiiraation 
of  Magna  Charts  and  tht  sii  other  statutes  in- 
listed  upon  for  the  Subjects  Liberties,  if  ye 
thall  chit»e  that  to  be  ibe  best  way ;  bat  i 
it  may  be  without  additions,  nnmphnisc 
dplanations. — TTius,  if  yon  please,  jou  may 
b«  secured  from  your  needless  fenrs,  and  this 
parliament  may  have  a  happy  wished-for  end  ; 
whereas  by  the  contrary,  if  yon  seek  to  tie 
.  yoar  king  by  new,  and  indeed  impossible  bonds, 
jroo  must  be  aocntintable  to  God  and  your 
country  for  ihe  ill  success  of  this  meeting :  his 
majesty  having  giveti  his  royal  word,  thiit  you 
l^all  have  no  cause  to  conplaiD  hereafter;  less 
Hian  which  hath  been  enough  to  reconcile  great 
princes,  and  therefore onght  much  more  to  pre- 
rail  between  a  king  and  his  subjects. — Ijisily, 
I  am  commanded  to  tell  ynu,  that  his  inajesty's 
pleasure  i>,  That  without  fortber  replies  or 
tneasages,  or  otlier  unnecessary  (telayl,  you  do 
wbat  yoa  mean  to  ^o  speedily,  remembering 
diE  last  Messnge,  which  his  msjesty  sent  you 
fcy  secretary  Cook,  in  point  oftimA:  his  tnn- 
j&Cy  nlways  intending  to  perform  his  pro- 
mise to  his  people, 

NotwiclistaDding  tbe  intimation  of  his  ma- 
jesty's good  pleasure  for  a  Bill,  Mr.  Secretary 
Cook.luesilay.May  6,Bgain  pressed  ih;  hone 
to  rely  upon  the  king's  word,  sayiiig,  I'hat  be 
had  rather  foHow  others,  than  begin  to  enter 
into  this  business :  loss  of  time  bath  been  the 
greatest  complnint;  the  matter  fallen  now  into 
consideration,  is,  wlist  way  to  take,  whether 
to  rel^f  on  his  msjesty's  word,  or  on  a  filH  ?  If 
we  will  comider  the  advantage  we  bdve  in 
taking  his  majesty's  word,  it  will  he  of  tbe 
Inraest  extent,  and  we  shall  cfatise  that  that 
kath  most  assurance ;  «n  act  of  parliament  is 
by  the  consent  of  the  king  sod  pariiatnent;  hot 
tbii  aisBnikcc  by  word  is^lbat  be  will  guten 


us  by  the  Inivs;  the  king  promises  thftf,  aqd 
also  thai  they  shall  be  so  executed,  that  we 
^hII  enjoy  as  mneb  freedom  as  ewer.  This 
contains  many  laws,  and  a  grant  of  all  good 
lans;  nay,  it  coatsins  a  cvnlirmatiDii  of  moa« 
Tery  hiws,  asiviniDce,  which  binds  farther  tbea 
tiie  law  can :  ftrst,  it  liiods  his  alfection,  which 
>■  the  greatest  bond  between  king  and  subject, 
and  tw  binds  his  judgment  also,  n*y^  his  ho- 
nonr,  and  that  nrit  at  hoTB*,  bet  abroad  ;  tbe 
royal  word  of  a  king  is  tbe  ffoitn4  of  all  treaty  ( 
nay,  it  binds  his  conscience.  This  confirtnatioN 
between  both  houses  is  in  nature  of  a  tow ;  for 
my  part,  I  think  it  is  tbe  greatest  advantage  te 
rely  on  bis  majesty's  word.~'He  fartbcr  aMed, 
this  dcUite  was  fitter  ta  be  dene  befers  the 
house,  and  not  before  the  » 
it  was  a  new  course  to  gi 
whole  house. 

Sir  JeAn  EUiol  replied,  That  tbe  prooeedtng 
.in  a  committee  is  more  booourable  and  advan- 
tageoos  to  tbe  kiag  and  tbe  bonee,  fat  (bat 
way  leads  most  to  truth,  and  it  is  a  more  «pen 
way,  and  where  every  man  may  add  his  reasoK, 
and  make  ansacr  upon  the  hearing  of  otber 
men's  rsasons  aiid  arguments. 

Thiii  being  the  genernl  Dense,  tbe  bouse  <vn> 
turned  into  a  Committee,  to  take  into  connde- 
ration  what  was  delivered  to  tbe  King  by  the 
Speaker,  and  what  was  delivered  to  thsm  bj 
the  Lord-Keeper,  and  all  oiber  Hassages,  nod 
the  Committee  was  not  to  be  bOnoded  by  any 
order :  tbe  key  was  brought  up,  and  none  were 
to  go  Out  wilhout  leave  fit^t  asked. 

In  the  debate  of  tbis  business  at  the  conk- 
mittee,  some  were  for  letting  the  bill  rest :  but 
sir  Edward  Coke's  reasons  prevailed  to  tbe  con' 
trary.  Was  it  ever  known,  said  he,  that  gene- 
ral words  were  n  sufficient  salisfiictiun  to  par^ 
ticnlar  grievancea?  Was  ever  a  verbal  de- 
clarallon  of  tbe  king  tcrtum  r^ni  f  Wben 
Grievances  be,  tbe  parlinment  is  to  redm* 
them.  Did  ever  parliament  rely  on  Kiev 
sages )  They  put  up  Petiuona  of  their  Griev- 
ances, and  the  kioj  ever  answered  tbem  :  tbe 
king's  answer  is  very  gracious,  but  vtliat  is  ibc 
law  of  the  realm,  that  is  the  question  ?  J  pot 
no  diffidence  in  bis  majesty,  the  king,  mast 
speak  by  a  Becord,  and  in  particuUn,  and  not 
in  general :  did  you  ever  know  the  king's  met. 
sage  come  into  a  Bill  of  Subsidies?  Ait  suc- 
ceeding kings  will  say.  Ye  must  trust  ne  a* 
you  did  my  predecessors,  and  trust  my  Me»- 
Mgcs;  but  messages  of  love  nerer  nme  intDjt 
parbamant.  La  ds  p«t  up  •  Peiman  of 
Kight:  not  that  I  distrast  tbe  kina,  but  that 
I  cannot  take  bis  trust,  but  ia  a  paruunea 

On  Thnrsd^,  8th  May,  the  Petition  nfRiglst 
was  finished^  and  the  clause  of  Martial  Last 
Was  added  onto  it,  and  it  was  delivered  to  A« 
lords  at  R  CoirferencE  in  the  Paitited  Chamber 
fortheir  concurrettce;  which  Conference  warn 
managed  by  sir  Edward  Coke,  wha  thus  tm- 
pressed  himsetf :  I  pray  yovr  lordships  to  »• 
cnae  tu,  for  ««  b»*«  been  till  one  o'clock  >b««t 


I»] 


STATE  TBIALS,  3  Chablu  L  )628_iA«  Uiertf  efiht  Sufytrt. 
concur  witb 


[190 


the  gnat  buiioets,  and,  bleised  be  God,  "« 
LaTc  di^accbed  it  in  tome  measure,  aad  ba- 
fore  thii  licoe  we  weie  ant  able  lo  attend  jour 


lauded  Irom  the  House  of  CauTinoi 
Hcas  tbeir  singular  care  and  aflcction  they 
haie  of  concurreDce  with  j^our  loidthips,  io 
tkw  iu^Q{  affairs  and  pnjceediogs  of  ttiK  par- 
liament; bolh  fur  the  j;oo<l  of  tbe  common- 
«ulth,  and  principallj  for  bii  oiHictly's.  And 
thb  I  maj  HJ  in  ibis  particular,  if  we  bad  hun- 
diada  of  tonj^ues,  ne  were  not  able  to  expren 
lias  desiie  »lufh  we  hsie  of  ibat  concurrence 
vidi  jour  lordiblpi :  but  I  will  leave  it  without 
anj  further  expreaion.  My  lords,  it  ii  evident 
•kac  Beceseitj  there  ii,  both  in  respect  of  your- 
•drci,  «Bd  jrour  posteritin,  to  havr  good  buc- 
ceis  in  thi?  business.  We  have  ac^ainted 
jour  lonfahipt  with  the  Reasons  and  Arguments, 
and  after  we  have  bad  some  Conference,  ne 
have  mcitnl  from  jour  lorrfsliip  five  Propo- 
mioas;  and  k  behores  me  to  give  joar  loid- 
sbips  some  reosoas  why  jon  luve  not  beard 
ftaio  *s  before  nuw  j  for  iu  the  mean  time,  as 
•*  were  causutiing  of  this  weighty  basintss, 
•e  k«ve  reenved  diicrs  Messages  from  our 
^r«at  sovereign  the  king,  and  tbej  consiRtd  of 

I.  That  his  majttty  would  maintain  all  bis 
Sabjeclt  in  tbeir  juu  lieBdom,  bMh  of  their 

3.  That  he  will  govern  accordii^  to  his  Laws 
and  Statuic*. 

3.  Tliat  we  thouid  fiaJ  mucfa  canfidenoa  in 
Lil  Kojal  Ward  ;  I  pray  observe  iJmt. 

4.  That  we  sbaU  csjay  all  our  lUgliu  and 
Libeitin,  with  as  much  freedom  and  libertf 
»»  ever  any  subjects  have  ione  i/\  foraier  times. 

5.  That  wlietlter  we  shall  thUik  it  fit,  either 
by  way  of  Bill  or-otbenvis^  to  ga  on  in  tlii) 
(real  husit>eBs,bi(  inajegty  would  be  pleMed  to 
^ive  way  to  ii. 

These  gracious  Messues  did  so  werk  upon 
out  aflectkuis,  that  we  ha*e  taken  thetD  into 
ctnuitleraUoa.  A}y  lords,  when  we  had  these 
lieawgea,  (I  deal  plaiulji^  for  so  I  aui  com- 
Kiaaded  by  the  House  «f  Commons)  we  did 
consider,  what  way  we  might  go  for  wtr  nwre 
«ecnre  way,  nat/,  yonia ;  wa  did  think  it  tho  sa- 
ieat  w^  to  go  in  a  (^lianientary  ooats^  ibr 
we  Lave  k  maiim  in  tbe  boase  orcofiinHU), 
and  writiau  on  tlie  na&  of  our  houses  That 
aUmj*aretb«*!il(BtaiHlsKTcitw^i:  and  «t 
last  WB  fell  upon  tlwt  whioh  w«  did  think,  if 
that  your  lordships  did  ritniiat  with  us,  it  is 
tbe  nmat  aocieot  «ay  of  nil,  and  tl>at  is,  my 
Junfa^  viajmtuia,  both  10  Us  mueii^,  to  yuir 
lon^iipa,  said  to  oofielies.  Fur,  nv  Uidi, 
■his  '» the  greatest  boad,  that  aa^  subject  can 
lave  ai  patliameBt,  verUim  rtgit,  this  is  aa 
UghiKtiatof  Ikmkwc,  but  tiiis  shall  be  done  by 
the  loidc  and  comimans,  and  aaseoted  to  by  tbe 
luagiii  parliament;  >this  is  the  greatest obligft' 
tioa-of  aU;  and  thiajefei  the  king's  fat»iaur  and 
ewMleiy.  Xherefere,inylerdi,weJiave'di»<>n 
abmof  afevitioD,  dc»iringyourJwdabi^.tD 


ein;  for  we  come  with  an 
of  all  tlie  house  of  con* 
mons,  and  there  is  great  reason  your  lordship* 
should  do  so,  for  your  lurdibips  are  involved  ib 
tbe  same  cunditiun,  camnrnttt  ptrUvlMim.  So  I 
,  have  done  with  the  first  patt :  and  Mw  I  shall 
be  bold  tn  read  that  which  we  have  so.  agreed 
oil,  and  I  sball  desire  your  iurdsbips  leave  that 
I  mny  read  ic 

Here  the  Petition  of  Ri^  k»s  reed ; '  bat 
we  forbear  to  inseK  it,  as  yet,  because  there 
wne  propositioiis  Ibr  citemtion ;  and  it  is  not 
perfect,  till  the  royal  assent  be  ^ven  to  it. 

From  tbe  8lh  to  tbe  13th  of  May,  all  puUie 
business  was  laid  aside.  On  Moauy  the  Igth, 
the  I^ida  had  aConfarence  with  the  Commons, 
where  tbe  Lord  Keeper  nude  tiits  Speech: 

Gentlemen  of  tlie  Hou^e  of  Commons ;  JSf 
Xxirds,  haviug  a  most  affectionate  desire  to 
maintain  that  good  concurrence,,  that  in  thia 
parliamsntand  others  have  baen  of  late  between 
both  houses,  desired  t)iis  CoDfcrertce,  to  ao 
qiiaiiityou,  how,  and  in  whatntanner,  they  have 
^Aiceeded  in  the  Petition  of  Richt  that  coma 
trom  this  beuse,  aod  to  let  you  know,  ibat  a) 
soon  as  they  had  received  it,  ihey,  with  all  care 
and  esiieditWD  they  possibly  could,  addressed 
themselves  to  consid^  thereof;  and  after  goed 
time  spent  in  deinte  in  tbe  whole  house,  they 
made  a  committee  to  consider,  wbeAer  relaiit* 
ing  tbe  substance  of  the  Petition,  thine  might 
not  be  sotne  words  altered,  erpot  iu  lemahe  it 
more  sweet,  to  procure  it  a  pi^sahle  wu  10  hi* 
majrscy :  we  know  this  must  be  crowned  bytha 
kiog,  and  good  mast  come  lo  all  the  kiogdani 
by  thiscaarsenow  taken.  The  connittee  bath 
net,  aad  hath  propauiuled  some  small  maUats 
to  be  altered  m  some  few  words,  to  rnakc  it 
passable,  aad  not  iu  substance.  And  tlie  lorda 
having  ebis  reported  ftom  their  cnmmittee,  aad 
beard  it  read  la  their  house,  resolHsdofaothiag 
till  they  hare  your  consent )  yet  they  think  it 
fitter  to  have  it  propounded  10  yov,  to  coaskhr, 
whether  there  should  be  any  ■laemtion  or  no, 
and  how  tJie  propounded  ^teretiuns  BMiy  ttand 
witli  yourhluog, — Conoerniog  the  twrnnilBMnt 
by  the  king  and  tlie  council,  wilboat  npresaiog 
lite  cause,  i^waaresd*cdby  theJoEds  todsbate 
it  this  monuDg, aad  as^seon  as  they  shmildhave 
debated  it,  they  pui«ilMd  to  have  your  concur' 
reoce  with  ihesu  btfott  they  feeeUed  it ;  bn.ai 
the  instwC  whan  they  thought  tw  bare  debatied 
it,  they  rootived  a  XeUer  fram  bis  nujesty, 
■liicb,  they  conoeivr,  will  givea  satlslactjnn  to 
btitb  bouses  in  the  maim  poiuL  My  lords  de- 
xiring  (o  keep  that  gaod  ooBctBTeaM  hngwa.dfr- 
sired  to  cOmntwaicate  that  LMtee  anto  yea,  that 
jqu  Blight  take  tlie  sane  iota  y«M  coBsidera- 
iieiu,a>  theymmtotk>ii«msel«M:  ThsLet* 
tcr  is  to  be  read  aiMo  J*" ' 
To  our  right  trusty  and  welt- beloved,  \1te  I.ord* 
Spiritual  and  Temporal  of  tbe  higher  houw 
ol  parlinment. 

<  C.  R.  W-e  -being  deMoaas  of  DOtbiagwoM 
1 1^„  ^,  adTABOHMMt  e^  thejMMfl  aaifim- 


191]  STATE  TRIALS,  S  Ca-isLBs  I.   1626.— ProUedingt  iii  Parli^aent  relating  lo  [19S 
•  ptritj  of  our  people,  hare  given  leave  to  frea 


<  debate  upoti  tlie  highest  poinis  of  our  preroga- 

*  tive  rojal,  which  iri  the  cirae  of  oar  predeces- 
'  sors,  kjDgs  aod  queeiia  of  this  realm,  were  ever 

*  mirain^  u  matten  that  ihey  would  not  liave 
'  dbcossed;    and  in  oLher  ihrngs  it  bare  been 

*  willing  BO  far  to  descend  to  the  deairea  of  our 
f  l^ood  subjects,  as  might  fully  satiify  nil  mode- 
'  rate  minds,  and  free  from  idl  just  fear*  and 
■JMdoiuies,  which  those  messages,  which  we 

*  have  hitherto  scot  into  the  Common*  house, 

*  will  well  demoDstrate  unto  ibe  worid.  Yet 
'  WB  find  it  Mill  insisted  upon,  that  in  no  case 
'  whatsoever,  should  it  never  so  nearly  conceni 

*  mattera  of  state  or  goTemrnent,  we,  or  our 
'  privy  oonncit,  bare  no  power  to  commit  any 
'  man  without  the  cause  shewed;  whereas  it 
'  ofif  n  happens,  that  should  the  cause  be  shewed, 

*  the  wrvice  itself  would  thereby  be  destroyed 
'  •nd  defeated;  and  the  cause  alledged  must  be 
'  auch,  as  mny  be  detennmed  by  our  judges  of 

*  oar  courts  of  Westminster,  in  a  legal  and  or- 
'  dinary  way  of  justice  j  whereas  the  causes  may 

*  he  )uch,  whereof  the  judges  have  no  capacity 
'  of  judicatDTc,  nor  rules  of  law  to  direct  and 
'  guide  their  judgment  in  cases  of  that  iran- 

*  aceadent  nature;    which  hsppeningso  oflen, 

*  tbc  very  intermitting  the  constant  m!e  cf  go- 

*  vernuent,  for  to  many  ages,  within  ihis  king- 

*  dom  pisctiieil,  would  soon  dissoUe  the  very 
'  foanilatioD  and  frame  of  onr  monarchy. 
'  Wherefore,  as  to  out  commons  we  have  made 
'  fair  propoMtiona,  which  might  equally  preserve 
'  the  just  liberty  of  the  subject ;    so,  ray  lords, 

*  we  have  thought  good  to  let  you  know  that 
'  without  the  overtbiaw  of  sovereignty,  we  can- 
'  oot  sufler  this  power  to  be  impeached;  not- 
'  witbttaiiding,  to  clear  onr  conscience  and  just 
■  inteutiona,  this  we  publish.  That  it  is  not  tu 
'  onr  heart,  nor  will  we  eier  extend  our  roynl 

*  power,  lent  unto  us  from  God,  beyond  the  just 
'  rule  of  moderation,  iu  any  tiling  which  ihalt 

*  be  contrary  to-our  laws  and  custom,  wherein 
!  the  safety  ofour  people  shall  be  our  only  aim. 

*  And  we  do  hereby  declare  our  ra>al  pleasure 
'  and  retolation  to  be,  which,  God  willing,  we 
'  ibdl  ever  coniiantly  coniinue  and  maintain, 
'  That  Deitber  we,  nor  our  piivy  council,  shall 
'  Of  will,  at  any  time  hereafter,  conaniit  or  tom- 

<  mand  to  prisoa,  or  otherwise  restrain  the  per- 

*  mm  of  any  for  Dot  lending  money   to  tis,  nor 

*  for  any  cause,  which  in  our  conscience  doth 

*  mot  concern  the  public  gfiod  and  safely  of  us 
'  and  our  people;  we  will  not  be  drawn  to  pre- 
'  teud  any  cauae,  wherein  our  judgment  nnd 
'  conscience  is  Dot  tttisfied  with;  which  base 
'  thoughts,  we  hope,  no  man  can  imagine  will 

<  fall  into  our  royal  breast;  and  that  in  all  ca'es 

*  of  this  nature,  whicb  ahall  hereafter  happen, 
'  wa  shall,  upon  thr  humble  petition  of  the  party, 
'  or  addresi)  ofour  Judges  uiito  ui,  readily  nnd 
'  really  express  the  true  cause  of  their  cummit- 
'  ment  or  restraint,  so  soon  as  with  convenicncy 
'  and  safety  (he  same  is  fit  to  be  disclu^  and 

*  expresied.  And  that  in  all  cnuses  criminal  of 
'  oMinaryjnriidiction,  our  judges  shall  proceed 
'  t*  tlw  Ai,\*9ntKt  or  bailment  of  the  prisoner, 


'  according  to  the  known  and  ordinary  rales  of 
'  tlie  laws  of  ihisl.-uid,aDd  according  tu  tbeSia* 

■  lutes  of  MagnaCliarta,  and  thoie"tber«ixSta- 

■  tutes  inhistcd  iipon.n  hicli  we  (to  take  knuuledf^e 
'  stand  in  full  force,  and  which  wl' intend  not  to 

*  abrogate  and  weaken,  ai^ainvi  iheirueiuleiUion 
'  thereof.  ThiBwehaieChoughtfitioBJEnifyunto 

*  you,  t  he  rather  tnbborieuunyt'ingDtbnteupov 
'  thisgreot  quest  ion, the  seosnn  of  the  year  be- 
'  ing  so  fur  advanced,  and  our  great  occasiODl 
'  of  stale  not  tetiding  us  mnny  more  day*  for 
'  longer  continuance  of  this  fe^Bioii  i>f  parlia- 
'  ment.'  Given  under  our  Signet  at  our  Palace 
at  Westmiiisler,  13  Maii,  the  4th  year  of  our 
reign. 


Th( 


day  the  King's  Letter  was  c 
Lted  to  the  house  of  commoni,  they  laid 


«  King's 

aside,  and  sir  Thomas  Wentworlh  said.  It 
was  a  Letter  of  Grace ;  hut  the  people  will 
only  like  of  that  which  is  done  in  a  parliamen- 
tary wny:  besides,  the  debate  of  it  would  ipeiid 
much  lime,  neiilier  was  it  directed  to  the  Luu^e 
of  commens;  and  tlie  Petition  uf  Right  would 
clear  all  mistakes :  For,  said  he,  some  ^ve  it 
out,  as  if  the  liouse  went  abont  to  pinch  the 
king's  prerogaiive.  But  the  further  debate  of 
this  matter  tDok  up  several  days. 

May  17.     The  Lords  propoutuied,  at  a  Coa- 
terence,  nn  Addition  in  be  made  to  the  Peti- 
tion of  Kight,  which  vma  delivered  by  the  Lord-  , 
Keeper,  tO  tl.is  purpuse  : 

"  You  the  kni^hls,  citizens,  and  burgefsei  of 
the  bouse  of  cummons,  my  lords  have  com- 
mnaded  me  to  present  uuto  yon  the  singular 
care  and  affection  they  have  to  preserve  that 
correspondency  and  order,  nhkh  tha  two 
houses  (hoili  in  this  and  former  parliaments,  to 
the  happiness  of  this  kingdom)  fia.it  heretofore- 
etijoyed. 

"  They  command  me  also  to  let  you  know, 
tliat  they  have  no  less  care  andl  affection  lo 
bring  that  great  husinesj,  (Ae  LUierly  oflAe  Stifc- 
jrcl,  to  nn  bnppy  issue.  And  whereas  nt  tha 
Inst  Conference  r,f  both  houses,  ibere  were  ^ome 
things  propounded,  that  cume  from  their  lord- 
ships, out  of  a  desire  the  Petition  (night  havti 
the  easier  passage  with  his  majesty,  not  intend- 
ing lo  alter  in  any  manner  the  substance  of  the 
Petition ;  but  it  was  then  tliouglit  fit,  tliat  there 
waff  anolher  pnrt  of  the  Petition,  of  as  great 
impottsnce  and  ueisht:  my  lorrfs,  since  the 
time  of  that  Conference,  hare  employed  ihem— 
selves  wholly  to  reduce  llie  Petition  to  stirfi  a 
frame  and  order,  that  n)ay  give  both  to  you  mud 
tittm  hiipe  of  acceptance. 

"  And  after  mHny  deliberationt,  and  mnch 
adrice  taken,  my  lords  have  resolved  to  repre* 
sent  to  you  somethinj;  vhich  they  have  tliou|^ 
upon,  yet  not  as  a  thing  conclusive  to  them  or 
you  ;  and  accordiiu;  lo  their  deisires  (bavins 
mentioned  it  in  the  beginning)  have  held  it  6c 
to  conclude  of  nothing,  till  that  yon  be  made 
acquainted  with  it,  and  tliat  th^  msy  be  k 
mature  advisement  between  you  and  them,  so 
that  there  may  be  the  happier  cotidiuion  in  all 
their  bosinei*. 


193] 


STATE  TRIAIS,  SChakiesI.  1628 the  Uiert^  <^ the  Suhject. 


[194 


"  Ttui  being  ihe  determiiutlion  of  cbe  lords, 

(Lit  nodiiog,  thut  is  now  oQered  unto  jou, 
ilKHild  be  ciiiidutiTe,  yet  ibcj  thought  it  con- 
veaie^t  [o  present  it  unto  ynu. 

"  Tiui  alieratiun  (a.nd  not  tilLeralioD,butaJ- 
dilioo)  wLiclt  lliey  bhaii  propound  uiito  yuo,  to 
be  idvised  and  conferred  upon,  wliicli  is  no 
hreich  of  tbe  same,  they  think  it  meet,  if  it 
•hall  itand  wilh  your  libing,  (o  be  put  in  tlie 
cuaduiioQ  of  tlie  PeiiltOJi  which  I  sliall 


'  IVe  present  this   oui  humble  Petition 
'  your  iiiHJcsty,  with  the  care  not  cinly  of  pre- 
'  Mcving  uur  own  liberties,  but  with  due  i~ 
'gard  to  leave  mtir«  that Sovereigo  Po»i 
'  wherewith  your  ronjesty   is  trusted   for   the 
'  piolrclii>n,sate(y,BndhnppiDe(Sof  lbep«o|il< 

"  This  is  ibt!  thing  ihe  lorda  do  pri^cnt  un 
joa,  tbe  subject  of  this  Conference,  concerning 
ihe  adding  a(  this  in  tbe  conclusion  of  the  Peil- 
tuoj  mit^  ttiey  know,  ihat  this  is  uo  sidhII 
Ibing,  and  tliut  you  cuDiiot  presently  give  an 
mtsHcr  to  iti  ibeiefure  they  desire  yon,  that 
yog  do  witli  some  speed  consider  of  it,!ind  Lheii 
tonyups  will  be  reiidy  this  afternoon." 

This  Addition  produced  sererai  Speeches. 

Hr.  Atford.  Let  lis  look,  snid  he,  into  tbe 
Records, und  tee  nbat  diey  are,  wbaris"  Sove- 
reign Power  ?^  Bodin  saitfa.  That  it  is.  tree 
finui  any  condition,  by  this  ire'  shall  ncknow- 
Icdje  a  regal,  as  veil  as  a  legal  uoiver :  Let  us 
gire  that  to  tbe  king,  that  tbe  law  gives  him, 
and  no  more. 

Mr.  Pymm.  I  am  not  able  to  speak  to  this 
<|iMstion,  I  know  not  what  it  is:  All  our  Peti- 
(Km  is  for  tlie  Laws  of  England,  and  tbiajMwer 
ieems  lo  be  another  diglinct  power  fron  tbe 
powtT  of  tbe  law.  I  know  bow  to  add  sove- 
nipi  to  his  person,  but  not  to  his  power  i  And 
*e  cannot  leave  to  him  a  sovereign  power, 
■ben  we  uever  were'uosaessed  of  it. 

Ur.  l^loBtll.,  We  cannot  admit  of  those 
■ordii  with  safety,  tbey  are  applicable  lo  alt 
die  paru  of  our  Petition  :  It  is  in  the  nature  of 
aSavinf^  and  by  it  we  sbalJ  imply,  as  if  we  had. 
lactoaclud  on  lus  prert^ative  ;  all  tile  laws  we 
die  are  wiiliout  a  savinf :  oJid  yet  now  after 
iIm  riolatiun  of  them  we  must  add  a  saving  -.  I 
bare  seen  divfrs  Petitions,  and  where  the  sub- 
ject clniioed  a  Right,  there  I  never  saw  a  sav- 
ing of  this  luture. 

Sir  Edamrd  dike.  This  is  iiiagnnDt  inpamo, 
ibiait  propounded  to  be  a  conclusion  of  our' 
'FebtioD :  U  is  a  matter  of  great  w«i{ht ;  and, 
to  speak  plainly,  it  will  nverthrow  ^1  our  Peti- 
tua;  it  LreDcheg  to  all  pans  of  it :  It  ftici  at 
I<(iai4,  and  at  tbe  Oallij  itiid  at  Imprisoument, 
and  Billetine  oi  Soldiers ;  this  turns  all  about 
i^B.  Look  ioto  all  ihe  Peiitiuus  of  fonner 
tiior^  they  never  petitioned,  wherein  there  was 
*  tatiag  of  tbe  king's  soveieiitnty ;  I  know  ihac 
prerogative  is  pnrt  of  the  l.iw,  but '  auvereifcn 
power  is  no  parliaiiitutury  word.  In  my  npi- 
BKU,  it  weakens  Magna  Charta,  and  all  our 
ttslates;  for  tticy  are  iibsoLute,  tviiliout  any 
miag  oi  lovereign  po.wer.  And  shall  we  now 
kU  it,  we  bhall  ireaMs  the  fouudaiuo  of  htft 

TOU  III. 


and  then  the  buildiag  muit  needs  fall ;  let  o» 
take  heed  what  we  yield  unto;  Magna  Charta 
is  such  a  fellow,  that  he  will  have  oo  sovereign. 
I  Hoi^der  this  sovereign  nas  not  in  Magna 
Charta,  or  in  the  confirmalions  of  it ;  If  we 
grant  this,  by  implicatloi)  we  Ki^e  a  suvrreign 
power  above  all  these  laws  i  power,  in  law,  is 
taken  for  a  power  with  force  :  Tlie  Sheriff  bbnil 
take  tlie  power  of  tlie  county,  what,  it  means 
here,  Ood  only  knows.  It  is  repngnaiit  to  our 
petition,  that  is  a  Petition  of  Uight,  grounded 
on  acts  of  parliament,  Uur  ptedeotsstirs  couid 
nerer  endure  a  leho  jure  mo,  no  more  than 
the  kings  of  old  could  endure  for  tlie  churdi, 
sutzo  huHorc  Dei  et  JiccUtia.  We  luusi  not 
adniit  of  ir,  and  to  qualify  it,  is  impossible. 
Let  us  hold  our  privileges  according  lo  the  Ian; 
ibat  power,  that  is  above  this,  is  not  (it  far  the 
king  anil  people  lo  haveit  disputed  further.  I 
haiT  rather,  tor  my  part,  have  iha  prerogntive 
ncuxl,  und  I  myself  10  lie  uuderii,  tlum  tohave 
it  disputed. 

Sir  'I'domat  Wentwortli.     If  we  do  admit  of 


e  slinll  1 


B  little 


than  we  found  him,  i 
thanks  for  our  labour, 
L<  t  us  leave  all  power  to  his  majesty  to  punish 
mnlefactora ;  but  our  laws  are  not  Bcquainted 
with  sovereign  power ;  we  desire  no  new  thing, 
nor  do  we  irffer  (o  trebch  on  his  majesty's  pre- 
rogative ;  we  must  not  recede  htim  tliis  PetK 
tion,  either  in  part  or  whole. 

Mr.  Noye.  To  add  a  Saving,  is  nut  Mfe; 
doubtful  words  may  beget  ill  construction  : 
and  the  words  are  not  only  doubtful  worde,  but 
words  unknown  to  as, and  never  used  iu.anj 
act  or  petition  before. 

"^r.  Seldm.  Let  us  not  go  loo  hastily  to  the 
question.  If  there  be  any  objections,  let  any 
propound  them,  aod  let  others  answer  them  as  ' 
they  think  good.  I  will  not  touch  tbe  reason! 
already  given.  Tbe  gdm  of  this  addition  is, 
that  our  right  is  not  to  be  subject  lo  Loans  or 
Iinprisonnient  without  cause,  or  Martial  Law,  - 
but  by  sovereign  power'.  If  it  bath  no  refe- 
ence  to  our  PeutioD,  what  doth  it  here  f  I  am 
ure  all  oihtrswill say  it  liath referent,  and  so 
QDst  we.  How  fiir  it  doth  exceed  all  examples 
if  former  times,  no  man  can  shew  me  the  like. 
I  have  made  that  search  that  fuUy  satisfies  me, 
and  I  tiiid  not  annther  besides  S8  Ed.  1.  Wo 
have  a  great  many  petitions  and  bills  of  pulia- 
ment  in  all  ages,  iu  all  which  we  are  sure  na 
such  thing  is  added.  That  clause  of  ihe  S8 
Edw.  1,  it  was  not  in  tite  petitioa,  hut  in  the  ' 
king's  answer. 

In  Magna  Charta  there.were  no  such  clauses; 
the  articles  themselves  Are  to  be  seen  in  a 
library  at  Lambeth,  in  a  book  of  that  time,  upon 
which  the  law  was  made.  There  was  none 
the  Statutes  in  king  John's  lime,  for  tlieee  I 
have  seen,  there  is  no  8>iviap.  In  ibc  aitirles  of  - 
o'lfinnatto  diartana,  is  a  savinjc, '  les  niicii  nts 
:d^'  tliat  is,  for  '  file  maryer,  et  pur  f.iir  liu 
chivalier,' and  far, ransom.  And  in  tiie  uiti- 
clesof  kiag  John,  in  the  original  Chuner,  which 
I  can  sttew,  thfre  those  three  qidi  viere  nauied 


195]  STATE  TRIALS,  3  Ckablxs  I.  1628.— Proeetdmg$  in  Porluitntnt  relating  to  [196 


therein,  and  xhej  were  bU  knnwa.  Id  tbe  35 
E.  S,  there  U  »  petition  againit  Loans,  there  is 
no  saving,  and  so  in  otheni.  As  for  that  addi- 
tion in  the  98  E.  1,  do  liut  observe  tde  peii- 
tiona  after  Magna  Charta  ;  as  5  E.  S,  ihtj  put 
up  a  petition :  *  whereas  in  Maj;na  Charta  it  is 
caatained  that  none  be  imprisoned  but  bv  due 
process  of  law  ;*  those  words  are  not  in  hfagna 
Charta,  and  yet  thrre  is  no  saving.  And  so  in 
the  38  E.  3,  and  36,  37,  and  42  of  E.  3,  nil 
which  pass  bj  petition,  and  yet  there  is  no  sav- 
ing in  them.  Aad  theie  are  in  tbem  other 
words  chat  are  not  in  Magna  Charta,  and  vet 
DO  sa.vii]g.  For  that  tliat  Mr.  Speaker  said  to 
tl|e  kiug,  it  WIS  our  heart,  and  ever  shall  be  i 
but  we  then  spoke  of  the  king's  prerogative  bj 
itself,  and  ne  are  bound  to  say  to :  but  speak- 
ing of  our  rights,  shall  we  sej  we  are  not  Co  b« 
imprisoned,  savini  but  by  the  king's  sovereign 
power?  Say  my  Tnnds,  without  any  title,  be 
seised  in  the  king's  hand,  and  I  bring  a  Peti- 
tion ofAight,  and  I  go  to  the  king,  and  say,  I 
do  by  nu  means  seek  your  majes^s  right  and 
title  ;  and  after  that  I  brine  a  petitian  or  mon- 
ttranee  de  dmit,  setting  forth  my  ovm  right  and 
title,  and  with  all  set  doon  a  saving,  tbnt  I 
leave  intire  his  majesty's  right,  it  would  be  im- 
proper. It  «Bs  objected,  ibat  in  the  38  of  E, 
1,  in  the  end  of  Articuli  super  Cfaartas,  which 
VBS  a  conlimintion  of  Magna  Charta,  and 
Charta  de  Foresca,  in  the  end  there  is  a  clause, 
'savant  le  droit  et  signioryi'  the  words  are 
extant,  in  that  RoU  that  is  now  eicant,  but  the 
original  roll  is  not  eitant. 
'  In  the  i5  E.  1,  there  was  a  confirmation  of 
tbe  Charter :  in  the  37  E.  1,  the  parliament 
was  called,  and  much  stir  th^  was  about  tlie 
Charter,  and  renewing  the  Articles,  but  Chen 
little  was  done.  In  38  E.  1,  the  commons  by 
Petition  or  Bill,  did  obtain  the  liberties  and 
•nicies  at  the  end  of  the  pariiainent;  they 
were  extracted  out  of  tbe  Roll,  and  proclaimed 
abroad.  The  addition  was  added  in  the  Pro- 
clamation :  In  tbe  bill  there  was  no  loMHt,  but 
afterwards  it  was  put  in ;  and  tn  prove  this,  it 
is  true,  there  is  no  Parliament-roll  of  that  year, 
yet,  we  have  histories  of  that  time.  In  the 
library  at  Oxford,  there  is  ajouroal  of  a  pariia- 
inent of  that  very  year,  which  mentions  so 
much;  also  in  the  public  library  at  Cambridge 
there  is  a  manuscript  tfaat  belonged  to  an 
«bbey,  it  was  of  tbe  same  year  S8  ^.  1,  and  il 
mentions  the  parliament  and  the  petitions,  and 
'  articulos  quos  petienjnt  sic  conGrmaverat  rex 
*  ut  in  fine  adderet,  salvo  jura  corons  r^s  ;' 
Bud  they  came  by  proclamation  in  London. 
When  the  people  lieiird  this  clause  added  in  the 
end,  they  teU  into  execration  for  that  addition, 
and  tbe  great  earls  tfaat  went  away  satisfied 
troFD  the  pariiament,  hearing  of  this,  went  to 
the  king,  and  afterwards  it  was  cleared  at  the 
Deit  parliament.  Now  there  is  noParliament- 
■  roll  of  this  at  that  time,  only  in  one  roll  in  the 
ond  of  Edw.  3,  there  is  a  roll,  that  recites  not 
the  Parliament  bill,  but  the  statute  thai 
(he  eSect  of  tbe  roll  that  was  proclaimed. 
Tbe  lArd*  aAerwanb,  at  a  Conferaxe,  teo- 


derrd  Reastms  to  fbrti^  their  Addition ;  which 
were  briefly  repotted  by  the  Lord-Keeper : 
"  That  the  lords  were  all  agreed  Co  de&nd 
id  maintain  the  just  liberties  of  the  subject, 
and  of  the  crown ;  and  thai  the  word,  '  leave,' 
was  debated  amongst  them;  and  thereby  thej 
meant  to  give  no  new,  but  what  was  before: 
for  llie  wurds  '  sovereign  power,'  as  lie  is  a 
king,  be  i*  a  sovereign,  and  must  have  power; 
■HI  be  said,  the  words  were  easier  t)»n  tbe 
Prerogative.'  As  for  tlie  word,  '  that,'  which 
I  a  rdadve,  atul  referred  to  '  tlutt  power,'  that 
is  for  the  safety  of  the  people;  and  this,  said 
he,  can  never  grieve  any  man.     Beiug  thus 

Cubliahed,  it  is  not  sovereign  pow^-  in  geneisl ; 
ut  now  in  confutation  of  out  reasons.  Magna 
Charta  was  not  with  a  saving;  but,  said  he,  you 
pursue  not  tbe  wotds  in  Mapia  Charta,  and 
therefore  it  needs  an  addition.  As  for  the  38 
of  Edw.  S,  he  said,  there  was  a  saving;  and 
an  ill  exposition  cannot  be  made  uf  this,  and 
both  houses  have  agreed  it  in  substance  al- 
ready ;  tbe  commons  did  it  in  a  speech  detiver- 
ed  by  the  Speaker,  and  that  we  say  we  have 
not  a  thouKhc  to  incroach  on  the  king's  sovtr- 
r^igncy  ;  and  why  may  you  not  add  it  in  your 
Petition  f" 

Upon  this  report, 

Mr.  Jlfeuon  spake  bis  opinion  in  manner 
following : 

In  our  Petition  of  Right  to  the  king's  majesty, 
we  mentbn  the  laws  and  statutes,  by  wtuch  it 
appeared.  That  no  tax,  loan,  or  the  like,  ought 
to^e  levied  by  tbe  king,  bat  by  common  assent 
in  parliament :  that  no  freeman  oaght  to  be 
imprisoned  but  by  the  law  of  the  load;  that 
no  fneeman  ought  to  be  compelled  to  suffer 
soldiers  in  his  house.  In  the  Petition  we  have 
expressed  tbe  breach  of  these  laws,  and  denre 
we  may  not  suffer  the  like;  all  which  we  pray 
as  our  Rights  and  Liberties. 

The  lords  have  proposed  an  Addition  to  this 
Petition,  in  these  words  i  '  We  huiobty  pre- 
'  sent  this  Petition  to  your  majesty,  not  only 
'  with  a  care  of  our  own  Liberies,  but  with  m 
'  due  regard  to  leav«  entire  that  Sovertign 
'  Poarr  wherewith   your  m^esty  it  intrusted 


.  Addition,  is  the  subject  of  tliis  day's 
discourse :  and  because  my  Lord-Keeper,  u 
the  last  tonference,  declared  their  lordshipa 
had  taken  the  words  of  tbe  Petition  apart,  I 
shall  do  so  too.  The  word,  '  leave,'  in  a  peti- 
tion, is  of  tbe  same  nature  as  '  taring'  m'  a 
gran(,orsu!tof  parliament;  when  a  man  grania 
hut  pact  of  a  thing,  he  saves  thereat:  wl^  be 
petitions  to  be  restored  but  to  part,  be  leaveth 
tbe  rest :  then  in  the  end  of  our  Petition,  tbe 
word,  ■  leave,'  will  imply,  that  tometbing  is  to 
be  left  of  tJiat,  or  at  least  with  a  reference  to 
whet  we  desire. 

The  word  '  intire,'  is  very  contiderabte ;  k 
conqtieror  is  bound  by  no  law,  hut  bath  power 
dare  Ugtt,  his  will  is  a  law ;  and  aloodgh 
William  tbe  Conqueror,  at  fiiU,  to  make  his 
way  to  the  crown  of  Emland  the  nun  eaif, 


197) 


STATE  TKIAI^,  3  Charlm  I 


•ltd  the  powwtion  or  it  rai>re  sure,  claimed  it 
by  till* :  but  mfierwards  wbea  there  were  do 
pauerAil  pntenders  to  the  ctnmn,  che  litle  of 
amqqcit  (to  iotroduce  that  absniute  poner  of 
a  conqueror)  was  cUimect,  apd  that  statute  of 
UatjiM  Cbarta,  and  other  statutes  mencianed 
in  our  Petition,  do  priDcipall;  iimit  Ihat  power. 
I  bope  it  is  as  lawful  for  roe  to  cite  a  Jesuit,  m 
it  is  for  Dr.  Maowaring  to  fabifjr  him ;  Suares, 
in  hii.firtt  book,  dt  I^gilnu,  cap.  17.  delifered 
kif  opiiiiaa  in  these  words,  '  Ampliludo  et  re- 


'Mnctia  poteatati! 
'  nala  vei  iajuHa  i 


i  iajuHa  DOD  sunt,  pendet  ex  arbitrio 
-  nomiBufD  et  ex  ambigaa  cortveotione  tcI 
'  pacta  inter  rei;es  et  TCgoum.'  And  he  farther 
cxpreMCih  bis  <^iQn,  Tbat  the  kiug  of  Spain 
was  to  absolute  a  monarch,  ibat  he  might  law- 
fuUj  ii^Nwe  tribute  without  cnnseot  of  his 
people,  nntil  about  SOO  Tears  unce,  nfaea  it 
was  condodeii  between  him  and  his  people, 
that  without  consent  of  his  people  bj  proxies, 
he  sfaodid  not  impose  any  tribute.  Arid  Sunres's 
opinioD  is.  That  bj  that  agTceni«nt,  the  Linn 
of  Spkin  are  boaad  lu  impose  no  tiibuie  wiib- 


And  this  agreement  that  author  calls  a  re- 
straiaii^  of  that  suv«reigo  power ;  the  Siatutea 
then  mentioned  iii  our  Petition,  rettraining  that 
absolute  power  of  aConqneror;  if  we  recite 
those  statutes,  and  t«;,  we  leave  the  toverei^ 
power  intira,  we  do  take  away  that  restraint- 
which  is  the  rirtue  and  itrengtli  of  those  sla- 
ti^ea,  and  iM  *t  liberty  the  c£tim  of  the  sove- 
rei^  power  of  a  conqueror,  which  is  to  be 
bmilcd  and  restrained  by  no  laws ;  this  may 
be  the  danger  of  the  wonl,  '  intire.' 

Hie  next  word  ilelirercd  by  the  lords  as 
obserrable,  is  the  particle,  '  that;*  becattie  it 
was  Mid,  that  all  sovereign  power  is  not  men- 
tioned to  be  left,  but  oul;  (that)  with  which 
the  kitig  is  trusted  for  our  protection,  saret^f, 
>od  happiness;  but  I  conceive  this  to  be  an 
exception  of  all  sovereign  power ;  for  all  sove- 
(«««  power  in  a  king,  is  for  the  protection, 
safety,  and  happiness  of  his  pe«fje.  If  all  »n- 
vercign  power  be  eiceptfcl,  you  nay  easily, 
judge  the  consequence,  all  loans  and  taxes 
tKiOE   imposed   by  colour  of   thnt  sovereign 

The  oeiC  word  is,  '  Trusted  ;'  which  is  very 
unbiguiHu,  whether  it  be  meant,  trusted  by 
God  onlj  Bi  a  Conqueror,  or  by  the  people 
•bo,  as  King,  nbicb  ai«  tn  govern  hIm  occord- 
iof  to  laws,  ej  patio,  la  this  point  I  will  not 
presume  to  adventure  liinber;  only  I  like  it 
not,  by  reason  of  the  doubtful  exposition  it  ad- 
mits. I  have  likewise  considered  the  proposi- 
Doa  kselT,  and  therein  I  iksve  iklleii  upon  the 
dilemma,  that  ibiii  Addition  isball  be  construed 
ettbertorvfler  onto  the  Petition,  or  not;  ifii  doih 
Dot  refer  anto  ilir  Petition,  it  it  merely  useless 
and  mmeceaeary,  and  unbefitting  the  judgment 
of  this  grave  and  great  iiiasiiiliit  to  add  to  a 
Petition  of  this  ncieht.  If  it  hnib  refeisnce 
BBto  it,  then  ^t  destroys  not  only  ihe  virtue  and 
■rtng^  of  oor  Petition  of  Right,  but  our  riibts 
iJMuelre*;  ibr  the  Adtfition  being  rcferreo  to 


16Q8.—lhe  Libaiy  t^Oe  Sk^I. 
each  part  of  the  Petiiio 


(IDS 

ought  to  be 

compelled  to  mate' any  gift,  loan,  or  such  like 
charge,  without  common  consent,  or  act  of 
parliament,  unlrss  it  be  by  the  sovereign  [lower, 
with  which  the  king  is  trusKd  for  the  proteo- 
tion,  safety,  and  happiness  of  his  people. 

That  none  ought  to  be  compeUed  to  sojourn 
or  billet  soldiers,  unless  by  the  same  soiereiga 
power ;  and  to  of  the  rest  of  the  Rights  con- 
tained in  the  Petition  :  and  then  the  most  fa- 
TOurahla  construction  will  he,  that  the  king 
halh  an  ordinary  prerogative,  and  by  that  ho 
cannot  impose  taxes,  or  imprison  ;  that  is,  he 
cannot  impose  taxes  at  bis  will  to  eaiploy  them 
as  be  pleaseth  :  but  that  he  hath  an  extraordi- 
nary and  transcendant  sovereign  power  for  the 
protection  and  happiness  of  his  people,  end  for 
such  purpose  he  may  impose  taxes,  or  billet 
soldiers  as  he  pleaseth ;  and  we  ma;  avure 
ourselves,  that  herealler  all  loons,  btiei,  and 
billelting  of  soldiers,  wiL  be  said  to  be  for  the 
protection,  safety,  and  happtnest  of  the  people, 
pertainly  bereafter  it  will  be  conceived,  that  an 
house  of  perlinmenl  would  not  have  made  an 
uonecessary  Addition  lo  this  Petition  of  Right; 
and  therefore  it  will  be  resolved,  that  ibe  Addi- 
tion hath  relation  to  the  Petition,  which  will 
have  such  operation  as  I  h^ve  formerly  de- 
clared; and!  Uie  rather  fear  it,  becanse  the 
late  loan  and  billetting  have  been  declared  to 
have  been  by  sovereii^n  power  for  the  good  of 
ourselves;  and  if  it  be  doubtful  whether  this 
proposition  hath  reference  to  the  Petition  or 
not,!  know  not  who  shnlljudee  whetlier  loqns 
or  imprisonmenis  hereafter  be  by  that  sovereign 

A  parliament,  which  is  made  a  body  of  se- 
verol  writs,  and  may  be  dissolved  by  one  iwm- 
mi^on,  cannot  he  certain  to  decide  this  ques- 
tion. We  cannot  resolve  chat  the  Judges  shall 
,  determine  the  words  of  the  King*s  Letter  read 
in  this  house,  expressing  the  cause  of  commit- 
ment may  be  such,  that  the  judges  have  not 
capacity  ofjudicature,  no  rules  of  law  to  di- 
rect and  juide  their  judgments  io  cases  of  tlixt 
traiuceniiant  nature;  the  judges  then,  and  the 
jucl^ents,  are  easily  conjectutvd.  It  halh 
Deen  confessed  by  the  king's  couniel,  tlinc  the 
statute  of  MatEna  Ghana  binds  the  kiug,  and 
his  sovereign  power  cannot  be  divided  from 
himself.  IT  then  the  stniute  of  Mafoa  Charta 
binds  tbeking.it  hinds  his  sovereign  power. 
If  to  the  Petition  theae  nords  be  added,  thtt 
exposition  must  be,  that  the  statute  of  Ma^a 
Charta  hinds  the  king's  sovereign  power;  saving 
the  king's  sovereiin  power,  I  shall  endeavour 
to  give  some  answer  to  the  Reasons  given  by 
the  lords. 

The  first  ii.  That  it  is  the  intention  of  both 
bouses,  tn  maintain  the  just  Liberty  of  the 
Subject,  and  nnt  lo  diminish  ihe  just  power  of 
cbe  king  :  and  therefor^  the  expression  of  that 
intention  in  this  Petition,  cuinot  prejudice  us. 
To  which  I  answer. 

First,  oar  intention  was,  and  is,  ai  we  then 
professed,  and  no  man  can  assi'gu  any  particular 


199]  STATE  TR1ALS>  SChablesI.   \0Q5.— Proeeedinss  in  Parliament  relaiv^  to -[HXi 


in  viiirch  we  have  done  [9  the  contrary ;  nei- 
ther have  we  anj  waj  transgrt-ssed  in  that  kind 
in  thii  P«[uion :  •nd  if  weinake  this  Addilion 
to  the  I'ettdon,  it  tvould  give  siirae  intliaation, 
that  we  have  eiven  a  ciiuse  or  colour  of  uflence 
therein  ;  which  we  deiij  :  niid  which  if  any 
roan  conceive  bo,  let  litm  assign  the  particular, 
tliiit  ne  mny  give  aiisiver  (hereunto. 

liy  our  Petition,  we  ■  inly,  desire  nur  particular 
Righia  and  Liberties  to  be  coufinned  to  us; 
ana  tlierelbre  it  is  not  proper  fur  us  in  it  (o 
inentinn  sovereij-n  power  in  general,  being  al- 
ti^ethcr  impertiiieul  to  rhe  matter  of  ihe  Peti- 
tion.— There  is  a  great  difference  belwcen  the 
wnrdii  of  the  Addition,  and  the  words  proposed 
therein,  vh.  between  just  power,  winch  may 
tic  conceivMl  to  be  limited  by  laws,  and  Mive- 
reign  puvier,  which  is  supposed  to  be  Irans- 
Cendant  and  boundless.  ^ 

The  second  Season  delivered  hj  their  lord- 
ihips,  was,  Tliat  the  king  is  SDvereign  ;  (hat  ns 
he  in  sovereign,  he  hitth  power,  and  that  that 
eovereign  pontr  is  to  be  left :'  for  my  purt,  I 
ivonld  leave  it  to,  as  not  to  mention  it ;  but  if 
it  'iiould  be  expressed  to  be  left  in  this  Peti- 
tion, as  it  is  proposed,  it  must  admit  something 
to  be  left  in  the  king  of  wliat  we  pray,  or  at 
least  ndmk  some  sovereiijn  power  in  his  m^- 
je%tr,  in  these  privileges  ivhich  we  claim  to  be 
our  ri'ihl,  which  would  frustmtB  our  Petition, 
niid  destroy  our  rij^ht,  as  I  have  formerly 
(tiewed. 

The  third  Reason  given"  fir  this  Addition,, 
was,  'Oi-.it  in  the  statute  of  ArtitniU  super 
Ch.irt.is,  there  is  a  suviiig  of  the  Right  and 
Seitiniory  of  the  crntrn. 

Towhichlgitethese  Answers:  ThatMapna 
Cliarta  was  C'iniirmed  above  thirty  time;,  and 
a  general  taring  w:is  iu  none  of  these  nets  of 
confirmation,  but  ill,  this  only ;  and  I  see  no 
caute  ne  should  follow  one  ill,  and  not  thirty 
good  precedents  ;  and  the  rather,  because  that 
KLvifig  produced  ill  eDects,  that  are  well  known. 
—That  saving  was  b;  act  of  parli-iment;  tlie 
conclusion  of  which  act  is,  Tliat  in  nil  ib'isr 
cpscs  ihe  king  did  will,  and  all  tho'C  that  were 
at  the  making  of  Chat  nrdinnnce  did  intend, 
thhttlie  Right  nndSeiijuiory  of  iliecrownshouU 
he  saved  1  by  ivhich  it  appears  cliat  the  saving 
was  not  iu  the  Petition  of  the  commons,  but 
hdded  by  the  king  ;  for  iu  the  Petition,  the 
ling's  wilt  is  not  expressed, 

111  that  act  the  king  did  grant,  and  part  with, 
to  his  people,  divers  rights  beloDEing  10  bis 
,  prerogative,  ns  iti  the  first  chapter  tie  granted. 
That  the  people  might  chuse  three  luen,  whicli 
uii^ht  have  power  to  hear  and  determine  com- 
plaints, made  ngniiist  those  that  oSended  in 
aiij  [Miint  of  Magna  Cliarta,  though  they  were 
the  king's  oAicera,  and  to  line  and  ransom  them. 
And  in  the  S,  12,  and  19  Chapters  of  tliat  Sta- 
tute, the  king  parted  with  other  prerogatives, 
mill  therefore  there  minht  be  some  tcason  of 
.  the  adding  ofthat  sovereign  power,  by  the  king's 
counsel;  but  in  this  Petition,  ive  deiire- no  thing 
of  the  king's  prerogative,  but  pray  the  eJijoyiiig 
'if  our  proper  and  undoubted  rights  aiid  privi- 


The  fourth  Reason  given  by  ibeir  lordships, 
v^ns,ThBt  bjbtlie  mouth  of  our  Speaker,  i» 
have  this  parliament  dtctired,  Ihnt  it  va* 
far  ftDUi  our  intention  to  incroach  upon  his  toa* 
jesty's  prerogative,  and  thnt  therefore  it  couM 
Dot  prejudice  us,  to  menti'in  the  same  resoli^ 
tion  in  an  oddition  to  this  Petition. 

To  which  1  answer,  That  that  declaration 
wn9  n  general  Answer  to  a  Meiuge  ftt>m  his 
mnjeity  to  us,  by  which  his  majesty  expresKd 
thnt  he  would  not  have  bis  pren^utive  striiit- 
ened  by  anynew  explanation  of  MngnaChitrta, 
orthe  reat  of  ihesiatules:  and  therefore  that 
cipression  of  our  Speaker's  was  then  proper, 
to  make  ithave  reference  to  this  Petition,  then! 
being  nothing  therein  contained,  but  paiCtcuhv 
Rights  of  tlieSnlijrct,  nnd  nothing  at  all  con- 
cerning his  mnje>ty's  prerogative, — Secondly, 
That  Answer  was  to  give  bis  majesty  sntisfaciion 
of  all  our  proceedings  in  general,  and  no  man 
can  assign  any  particular,  in  which  we  hare 
broken  it;  and  this  Peiiiiunjttitilies  itself,  that 
in  it  we  have  not  olTended  ui:aiiist  the  pmtc»- 
tation :  and  I  know  no  reason,  but  that  tliii 
decl.iralion  shouhl  be  ndded  Co  all  our  lain  we 
shall  agree  on  this  parliament,  as  well  as  to  this 
Petition. 

The  last  reason  given,  was,  Tliat  we  hare 
varied  iu  our  Petition  from  the  words  of  Magna, 
Charta;  and  therefore  it  «a»  very  neceisa^ 
that  a  saving  should  be  added  to  this  Petition. 

1  answer,  that  in  tlie  statute  5  E.  3,  S.t  E,  3, 
88  E.  3,  and  other  statutes,  with  which  Miigaa 
Charts  it  coiiGmied  ;  the  words  of  the  statute 
of  eiplannlioil  differ  from  the  words  of  Magna 
Ghana  itself;  the  words  of  s'lme  of  the  iis- 
tutes  of  uiiplanauan,  bcin^,  '  1  bat  no  man 
'  ought  to  he  apprehended,  unless  by  indict- 
'  men!,  or  due  proceis  of  law  ;'  and  the  otijer 
stHtutes  differing  from  the  words  of  Magna 
Charta,  tn  many  other  psrticuliirs,  nnd  jet  thera 
is  no  taking  in  those  stnliites,  much  less  shniila 
there  be  anv  in  a  Petition  of  Ri^ht.  These  are 
the  Answers  I  have  conceived  to  the  Itcawni 
of  their  lonlships,  and  the  exposition,  I  appre- 
liKid,  must  be  made  of  the  proposed  wordj, 
being  added  to  oar  Petition.  And  theiefore, 
I  conclude,  ltij.t,  in  my  opinion,  we  ipjy  not 
consent  to  this  Addition,  which  I  submit  to 
better  judgments. 

The  Cunuiions  afterwards  appointed  Mr. 
GlanviJe  and  sir  Henry  Marlio  to  manage  ano- 
ther tTonlereiice  to  be  had  with  (he  Lords„coo- 
cerning  thesaid'inatter,  and  to  clear  jhe  sense 
of  the  Commons  in  that  poiTit:  The  one  nrgueo 
the  legal,  the  oiher  the  rational  part. 

Mr.  GiAXViLLi's  Speech  in  a  full  ConwulW* 
of  both  Houses  of  Parliament,  MoySJ.  >" 
the  Painted  Cluiiiiber  at  Westiointter. 

My  lords,  I  have  in  charee,  fromlbe  Com- 
mons House  of  parliament  {nbeteof  I  s""  ' 
member)  to  express  tliis  day  before  your  l"r^. 
ships  Some  part  of  their  clear  sense,  IobcIbob 


tOl]         STATE  TRIALS,  3  Chables  I.  iRIS— the  Hbariy  qf  i*e  Svbjat. 


1^09 


ixr  point  that  h»(h  occurred  in  tha  great  He- 

tnte,  obich  hath  so  long  ilepended  in  boih 
boityn. — 1  shall  not  need  man^  words  to  induce 
or  store  the  quesiion,  which  I  am  to  liHndla  in 
a»  fne  conference.  The  subject  matter  of 
ou  meeting  is  irell  tnofrn  to  jour  lordships,  I 
win  tberelbrc  ont;  look  so  far  back  apon  it,  and 
to  fer  recollect  summBrily  the  proceediDgs  it 
bull  bnd,  at  may  he  requisite  to  present  clearl^r 
to  jour  lordships  coasirierationii,  the  nature 
ud  conseqoence  of  tlie  particular    nherein  I 

Your  lordships  may  be  pleased  to  rememlier, 
BOW  that  the  Commaas  in  this  pnrliament  have 
hmed  a  Petition  (o  be  presented  to  liis  ma- 
jotj,  a  Petition  of  Right  tighily  composed, 
iritimg  nothing  but  trutb,  desiring  nothing  but 
jiaice ;  a  petition  jumIt  occasioned,  a  petition 
nccnsary  and  lit  tor  these  times,  a  petition 
faoaded  upon  solid  and  substantial  grounds, 
the  laws  and  statutes  of  this  realm,  sure  rocks 
to  baild  upon ;  a  petition  bounded  within  due 
limits  and  directed  upon  right  ends,  tn  vindi- 
cstt  some  lawful  nndjusc  liberties  of  the  free 
nljef^ts  of  this  kinedom  from  the  prejudice  kf 
TJolaTOOB  pnst,  and  toiccure  them  from  future 


j^od  hetAuse  mv  fullowing  discourse  must 
w6ret  chieflyi  if  not  wholly,  upon  the  matter 
of  this  Pebuon,  I  slinll  here  crnve  leave  shortly 
10  open  to  your  lordships  the  distinct  par^ 
whereuf  it  doth  consist,  and  those  ara  four. 

Tbefirti  concerns  Lei ies  of  Monies,  by  way 
of  Loans  orothenviie,  for  his  majesty's  Supply; 
(fcclariug,  that  no  man  ought,  and  praying  tliat 
no  min  hereafter  be  compelled  to  make  or  yield 
uy  gift,  loan,  benevolence,  tax,  or  such  like 
durge,   nithtiut  common  consent  by  act  of 

).  The  second  is  concerning  thai  Liberty  nf 
Fereon,  which  rightfully  belongs  to  the  free 
ilbjectsofthisreiJul,  eipressingit  Id  beagainst 
the  tenure  of  the  laws  and  statutes  of  tlie  land, 
tkat  any  freeman  ^ouM  be  imprisoned  without 
nsse  shemed  ;  and  then  recitinn  how  this 
libc-ny,  amongst  others,  lialli  lately  been  in- 
fiini^d,  it  conclude  ih  with  a  just  and  necessnry 
ile^ire,  for  the  better  clearing  and  allowance  of 
tliijpiitilege  foi-  the  foiure. 

3.  The  third  declnreih  the  unlawfulness  of 
Wletting  or  placing  Soldiers  or  Mariners  to 
wjoura  in  free  subjects  houses  against  their 
"illl,  and   prayelh  remedy  ngainst  that  griec- 

4.  "ne  iburlh  tmd  last  aiinctli  at  redi'ess 
lOBcbing  Commissions,  to  proceed  io  the  trial 
■nd  condemnation  of  offenders,  and  causing 
them  to  be  executed  und  put  to  dwth  by  the 
lan^Iartbl,  in  times  and  places,  when  and 
•here,  if  by  the  laws  and  statutes  of  the  land 
Ibej  hod  desenrd  de^h,  by  tlie  same  laws  and 
■tiutes  also  they  might,  and  by  none  other 
ooeht  to  he,  adjudged  and  executed. 

Thij  Petition,  the  careful  house  of  romraons, 

Wtwillingtoomit  any  thing  pertiiiiiing  to  their 

mtite,  or  which  might  advance  their  modciale 

■   Mft  jojt  end),  diJ  heretofore  offer  up  unio  your 


lordships'  considenitia: 


humble  desire.  That  in  _ 
tice,  you  would  be  pleased  to  join  wiih  them  in 
presenting  it  to  his  mnietly,  that  so  coming 
from  the  whole  body  ol  tlie  realm,  the  peers 
and  people,  to  him  that  is  the  liead  of  both,  ' 
our  gracious  sovereign,  who  must  crown  the 
work,  or  else  all  our  labou^  is  in  vain ;  it  might. 


B  easy  passage,   : 


1  obtain   the 


find  the  n 
better  ans' 

Your  iordshipa,  as  your  manner  is  in  cases 
of  9U  great  impurtance,  were  pleased  to  debate 
bb3  weigh  it  well,  and  ihcrruuon  you  pro- 
pounded to  MS  some  few  Amendments  (as  you 
termed  them)  by  way  of  Hltcration,  aliedging, 
that  they  were  oidy  in  matters  of  form,  and  not 
of  substance  ;  and  that  ihey  were  intended  to 
00  other  end,  but  to  sweeten  the  Petition,  and 
mate  it  the  more  passable  with  his  majesty. 

In  this  the  House  of  CottimoDS  cannot  but 
observe  that  fair  and  good  respect  which  your 
lordships  have  used  in  ynur  proceedings  with 
then),  by  your  concluding  or  voting  nothing  in 
your  bouse,  until  you  had  imparted  it  unto 
them ;  whereby  our  meetings  about  tliis  busi- 
ness have  been  justly  auled  free  conferences, 
either  party  repairing  hither  disengaged  to  hear 
and  weigh  the  other's  reasons,  and  hoth  houses 
coming  with  a  full  intention,  upon  due  consi- 
deration of  all  that  can  be  said  on  the  other 
side,  tn  join  at  last  in  resolvii'g  and  actirg  that 
which  sljoll  be  found  most  just  and  necessary 
li>r  the  lionour  and  safety  of  his,  nnjesty  aud 
the  whole  kingdom. 

And  lunching  those  propounded  Alterations, 
which  were  not  many,  your  lordships  cannot 
but  remember,  that  the  house  of  commons 
h.ive  yielded  to  u.ii  accommqdntion,  or  cbnnoe 
of  their  Petition  in  two  pariiculars;  whereby 
they  hope  your  lordships  have  obsened,  a» 
well  Bi  you  may,  they  have  not  been  affected 
unto  words  and  phrases,  nor  overmuch  :ibound- 
ing  in  their  own  sense  ;  but  rather  willing  tit 
comply  with  your  lordships  in  all  indifferent 

For  the  rest  ofyoor  proposed  Amendments, 
if  we  do  not  miscuncdve  your  lordships,  as  we 
are  confideiit  we  do  not,  your  InrdBhips,  of 
yourselves,  huve  been  pleased  to  reliiKjuif^h 
them  with  a  new  ovt-rture,  for  one  only  clause 
to  be  added  in  the  end  or  Ibot  of  the  Petiiion,  - 
whrreby  tlie  work  of  this  day  is  reduced  to  .one 
simple  head,  whether  that  clause  bhall  be  re- 
ceived or  not  ?— This  yielding  of  the  comiuons 
in  port  unto  yoor  lordships,  of  other  points  by 
you  somewhat  insisted  upgn',  giveth  u*  great 
assumnce,  that  our  ends  are  one  ;  and  putlelti 
us  in  liope,  that,  in  conclnsion,  ive  shall  con- 
cur, and  proceed  unanimously  to  seek  the  same 
ends,  by  the  sume  pieans. 

The  Clause  propounded  by  your  lordships  to 
be  .added  ta  the  Petition'  is  this' : 

*  We  hirmbly  present  this  Tetition'  to  your 
'  majesty,  not  only  with  a  care  for  preservation 
■  nf  Liberties,  but  with  a  due  regard  to  leave 
'  int ire  that  Sovereign  Power,  nhctenitii  your 


303]  STATE  TRIALS.  3ChablesI.   JOiS.—PriKeedwgiiitParUatiaUrtlatingto  [HOi 

o  be  applied  onlj  for  pratectioa,  wretf,  mnd 

lappincN  of  ibe  people,     '-  —  '--  —  -—' > 

there  could  be  no  danger 


'  m^fttj  is  inCnuted  for  tbe  protectiun,  Mfetj, 
'  and  happineas  of  jour  people.' 

A  ClKuia  tpecious  in  shew,  and  imooih  iu 
words,  but  in  effect  and  consequence  uio*t  diui- 
gerotis,  as  [  hope  to  make  mnsc  evident:  bow- 
ever,  coming  ftam  jour  lordships,  the  house  of 
coiDinons  took  it  into  cbeir  couuderaciunt,  as 
bectnie  them,  and  apprehending  upon  the  Gnt 
.debate,  that  it  threatened  ruin  to  (he  wbole 
Petition,  the;  did  heretofore  deliver  tome  Rea- 
«ons  to  your  lordships,  for  which  thej  then  de* 
sired  Co  be  spared  from  admitting  it. 

Til  thew  HeasuDs,  jour  lorashipt  offered 
Mme  Answers  at  the  lose  roeeiini; ;  which  hav- 
ing been  Taiibfiilly  reported  to  our  houM,  and 
there  debated  as  was  requisite  for  a  business 
of  such  Height  and  importance,  I  itiuH  say 
truly  to  your  lordships,  yet  with  due  reverence 
10  your  opinions,  the  Commons  aie  not  tata- 
fied  with  your  argunieiits;  and  therefore  Ihey 
have  cainmandtd  me  to  recollect  your  lortj- 
ships  reasons  for  this  clause,  and  in  a  fnir  reply 
to  let  you  see  the  cuu&ex  why  they  differ  from 
jou  in  opinion. 

But  before  I  come  to  handle  the  piniculars 
vihereia  we  dissent  from  jour  lordships,  I  uill 
ill  tbe  lirbt  (ilace  take  notice  yet  a  little  Turther, 
of  thai  general  wherein  we  all  concur  ;  whicli 
is,  that  we  deaira  not,  ndtber  do  your  lord- 
sbijM,  (o  augment  or  dilslc  the  Ubertics  and 
Pnviiegesoftlie  Subjects  beyond  the  just  aad 
due  bounds,  nor  to  encroacb  upon  tbe  limiis  of 
his  mnjesty'i  Prerogative  Royal.  And  ds  in 
this,  your  lordships  at  tlie  list  meeting  rx pressed 
cleariy  yuur  own  seniei,  so  wero  your  luid>liips 
uut  misiaken  in  collectinft  the  concurrent  teu at' 
aad  loeauingof  theliuuse  of  cuinmoni;  ihey 
oHen   have  protested,  they  do,  and  ever  roust 

Kiteat,  That  these  have  been,  and  shallbrlht^ 
iinds  of  tiKtr  desires,  to  deiniuid  sod  seek 
nothmg  but  thAt  which  may  be  fit  fiv  dutiful 
And  loyal  subjects  to  ask,  and  for  a  itrucions 
■ud  just  kills  til  grant  ;  far  as  they  daim  by 
laws  some  libertirs  for  themselves,  to  do  they 
acknonledf^  a  prerogativf,  a  high  and  juit 
prerogative  belonging. to  tbe  king,  which  ihey 
luteQd  not  to  diminish.  And  now,  my  lords, 
being  asMued,  nut  bv  ttramed  iufereiiccf,  or 
obscure  collections.  Out  by  [he  express  and 
clear  declaratiooi  of  both  houses,  thai  our  ends 
are  the  same;  it  were  amiierableunlmppiness, 
if  .we  should  fall  in  finding  ou[  tbe  means  to 
accomplish  our  desires. 

My  lord!,  the  heads  of  those  particular  Rea- 
Kons  which  lyuu  insisted  upon  tM  lost  day,  were 
only  these : 

1.  Vou  told  us,  that  the  woid  '  leave '  was 
of  such  a  nature,  that  it  could  ^>e  no  new 
thing  to  his  miijescy. 

i.  That  DO  just  eiception  ceuld  be  taken  to 
the  Kords  '  Sovereign  Power;'  lor  that  as  his 
majesty  is  a  kioc  so  he  is  a  sovereign ;  and  u 
be  is  a  sovereign,  w  he  bath  power. 

.  3.  Thnt  the  sovereign  power  mentioned  in 
this  clause  is  not  absolute,  or  indefinite,  but  li- 
mited aad  regulated  by  the  particle  '  that ;' 
ud  1^  word  ■  kubtec^uent '  which  restraint  it 


happiness  of  ibe  people,  whereby  je  intErred,^ 
'     _      in  the  aUowance 


That  this  clause  contained  no  more  in 
substance,  but  tlw  like  eipresaiuus  of  our. 
meanings  in  this  Petition,  which  we  bad  fop- 
merly  signified  unto  Ills  imyeaty  by  tlie  mouth 
of  Mr.  Speaker,  .that  we  no  nay  intended  to 
encroach  upou  his  majesty's  sovereign  power 
or  prerogative. 

5.  That  in  our  Petition  we  have  used  other 
words,  and  of  larger  eitent,  tonchiog  our  Xii- 
berties,  than  are  contained  in  the  statutes 
whereoi)  it  is  grounded :  lu  respect  of  which 
enlargement,  it  was  fit  to  Inre  some  express,  or 
implied  saving,  or  narrative  decluratory  for  the 
king's  sovereign  power,  of  which  oarnLtivs  you 
alledge  this  ckuse  to  be. 

Lastly,  Whereas  the  commons,  as  a  main 
argument  against  tbe  clause,  had  much  insisted 
upon  this,  that  it  was  unprecedented,  and  dd- 
parliameiitary  in  a  petition  from  tlie  Subject, 
to  inhert  a  saving  Kir  [lie  crown ;  your  lord- 
ships brought  for  lustance  to  tbe  contrary,  tlie 
two  statutes  of  the  25  Ed.  1,  coounoiiiy  called 
coiifirmalio  eharlamm,  and  SS  Ed.  1,  known 
by  this  name  of  Articuli  tuper  Charts ;  in 
both  which  Suuites  there  are  savii^  for  the 
king. 

Having  thus  reduced  t«  your  lordships  me* 
mories,  the  effects  of  yuur  own  Reasons;  I 
will  DOW,  with  your  lonlshipl  favour,  come  to 
t1>c  points  of  our  reply,  wherein  I  must  hum- 
bly beseech  your  lordsliips  to  weigh  tlie  rea- 
sons which  I  shall  present,  not  as  tbe  sense  of 
myself,  (he  weakest  inrnitier  of  our  house,  but 
as  the  genuine  nnd  ime  sense  of  the  wbol« 
house  of  conimons,  conceived  in  a  busineM 
there  debated  with  tbe  grcitiest  gravity  and  so- 
lemnity, with  the  (greatest  concurience  of  OJM-  ' 
niuns,  and  unanimity,  tliat  ever  was  in  any  bu- 
siness maturely  a^tnted  in  that  house.  I  shiiU 
not,  pemdventurc,  follow  tbe  method  of  your 
lordsliips  recollected  Reasons  in  my  aniweriug 
to  tlicm,  nor  labour  to  urge  many  reasons.  It 
is  the  desire  of  the  commons,  that  llie  weight 
of  their  arguments  sliould  recompense,  if  need 
be,  the  smallness  of  their  iiumber.  And,  in 
conclosiOD,  when  you  have  lieoid  me  through, 
1  hope  your  lordships  sbnll  be  enabled  to  cul- 
Ject  clearly,  out  of  the  frame  of  what  I  ihall 
deliver,  tmit  in  some  part  or  other  of  my  di«> 
course  there  if  a  titll  and  aatiifactory  answer 
given  to  every  putJcnlar  reaaoo  or  objection 
of  vour  lordships. 

The  Reasons  that  are  now  appointed  to  be 

Iiresenled  to  your  lordshius,  are  of  two  kind^ 
rgal  and  rational,  of  wluch  those  of  the  former 
sort  Me  alloRed  to  my  charge ;  and  the  fint  of 
them  is  thus ; 

Tlie  clause  nmv  under  question,  if  it  be 
added  to  the  Petition,  then  either  it  must  refer 
or  relate  unto  it,  or  else  not;  if  it  have  no 
such  reference,  is  it  not  clear  that  it  it  needleM 
and  superfluous?  And  if  it  have  such  refer- 
ence, it  it  not  dear,  that  tbeu  it  must  nredt 


205]  STTATE  TRIAI^,  3 Chaubs  I.  iQ2S.—t^ Liberty ^ the  Sulfftct. 


[%» 


,  I  would  offer  lu  a  vain  thinj; ; 
■nd  tbetvTore  tddngit  for  granted,  that  if  it  be 
added,  it  would  m^  to  the  Petivon ;  let  me 
bweecb  jour  lonbfaips  to  obierve  niih  me, 
•■d  with  ihe  booK  of  coramong,  what  ftlreia- 
tioD  Mid  qualificauoD  of  the  same  it  will  intru^ 

Hie  Fetitioo  of  itself,  limpIy,  and  without 
Jin  clMae,  dedasth  absolotel}  tiie  right*  and 
pritil^e*  of  the  mbiect,  in  diiere  points ;  and 
nmi^  tbe  rew  toacIiiD|;  the  levies  of  monies, 
bjwajr  of  loans  or  otherwise,  for  his  majut/s 
•npplT,  Ttial  Mch  lotiu  and  other  charges  of 
^  hke  mture,  bj  the  laws  and  statute*  of  this 
land,  oogfat  not  to  be  made  or  laid  withbnt 
cfimnon  consent  by  act  of  parliameat:  Bat' 
adnut  this  clanse  to  be  anneied  with  reference 
(to  the  Petition),  and  it  must  aecessarll;  con- 
dude  and  have  this  expoution,  iThat  Loons 
and  tbe  like  charge*  (true  it  is,  ordinanly]  are 
ipinst  tbe  laws  and  statutes  of  the  r^m, 
•  nalcss  thej  be  warranted  by  soiereign  power,' 
and  tlmt  ^ey  canoot  be  commanded  or  raised 
wkbaut  aiaeiit  of  parliament,  '  unlet*  it  he  by 
'  ao*ei«^  power :  What  were  this  hut  to  ad- 
nit  a  sovereign  power  in  the  king  above  tbe 
laws  and  statutes  of  the  kingdom  1 

Another  part  of  this  Petition  is,  That  the 
free  solgects  of  tlus  realm  ought  nut  to  be  im- 
piaoned  withoot  cause  shewed  :  But  by  this 
danse  •  sovereign  power  will  be  admitted,  and 
kit  entire  to  hia  majesty,  sufficient  to  control 
the  Ibrce  of  law,  and  to  brinjr  in  this  new  and 
dangenNU  interpretation.  That  the  free  aab- 
jecti  of  ihia  realm  ought  not  by  law  to  be  im- 
pTHmed  without  cause  sbewe«],  '  ualeaa  it  be 
'  br  Mivereiga  power.' 

fa  a  word,  ttiis  clause,  if  it  (hould  be  ad- 
mitied,  would  take  away  the  efiect  of  every 
part  of  tbe  Petition,  and  become  destructive 
to  the  whole:  ii>r  thence  wiU  be  tbe  exposi- 
tioa  toocbtag  the  billeltiog  of  Soldiers  and  Ma- 
riner* in  rreenen's  houses  againK  their  wills; 
attdtfacDce  will  be  tbe  exposition  touchins  the 
times  and  pkicet  for  execution  of  tbe  Law  Mar- 
tial, contrary  to  tbe  law*  and  statutes  of  tbe 

The  scope  of  this  Petition,  as  I  have  before 
dbseived,  is  not  to  amend  our  case,  but  to  re- 
state ua  to  tbe  same  state  we  were  in  before  . 
whereas,  if  tfais  clause  be  received,  instead  of 
esendiDK  (be  condition  of  the  poor  sal^ects, 
whose  Qbrrtie*  nf  late  have  been  miserably 
▼iidaud  by  some  ministen,  we  shall  leave  them 
Wane  than  we  fonnd  them ;  instead  of  curing 
their  woandi,  we  shall  make  them  deeper. 
We  have  set  boonds  to  our  desires  in  tbi*  great 
Twiiiii  sii,  wfaereor  oa«  i*  Dot  to  diminish  the 
preropuive  of  tbe  king,  by  mounrine  it  too 
Wb ;  and  if  we  bound  oursdve*  on  the  other 
tiae  with  tbi*  limit,  not  to  abrid);e  the  lawrul 
ptirilqn  of  tbe  nbject,  by  descend] 
Madi  (hat  which  i*  meet, 
can  Uame  n*. 
My  lofdi,  tti  tbtre  is  neniion  made  in  the 


!scendine  be- 
rh,  we  hope, 


additional  Clause  of  Sorereign  Power,  so  i* 
there  likewise  of  a  trust  reposed  in  hi*  majesty, 
'.oucbing  the  use  of  sovereign  power. 

The  word  <  Trust'  i*  of  great  latitude  and 
large  extent,  and  therefore  ou^t  to  be  well 
and  warily  applied  and  restrained,  especially  in 
tbe  case  of  a  king ;  there  is  v  trust  inseparably  ~ 
reposed  in  the  persoua  of  the  kings  of  England, 
but  that  trust  is  regnlated  by  law.  Fm  exam- 
ple, when  statutes  are  mode  ti>  prohibit  thing* 
not  mala  in  le,  but  only  aaia  gttia  prohiUta, 
under  certain  forfdturea,  and  penalties  to 
accrue  to  the  king,  and  to  the  iaformers  that 
ibatl  sue  for  the  breach  of  them ;  the  commqns 
raifst  and  ever  will  acknowledge  a  regal  and ' 
sovereign  prerogative  in  the  king,  touching  such 
statutes,  that  it  is  in  his  majesty's  absolute  and 
undoubted  power,  to  erant  diipensatinns  to  par- 
ticular persons,  wiih  the  clauses  of  mm  obtlaale, 
to  do  as  they  mij^ht  have  done  before  those  Bta~ 
tutes,  Wherein  bis  miyesty,  conferrinf(  grace  and 
favour  upon  some,  doth  not  do  wrong  to  others. 
But  there  ii  a  difference  between  those  statutes, 
and  tbe  laws  and  statutes  whereupon  tbe  Peti' 
tion  is  grounded  ;  by  those  statutes  tbe  subject 
has  no  interest  in  the  penalties,  which  are  all 
the  fruit  such  itaciies  can  produce,  until  by 
suit  or  inCormatian  commenced  he  become  en- 
titled to  the  particular  forfeitures  ;  whereas  the 
laws  and  statuiesmeotianed  in  our  Petition  are 
of  another  nature;  there  shall  your  lordship* 
find  DS  rely  upon  the  good  old  statute,  called 
Magna  Charts,  which  declarelb  and  confirmeth 
the  ancient  common  laws  of  the  liberties  of 
England  :  There  sbalt  your  lordships  aho  Gnd 
us  to  insist  upon  divers  other  nMst  material 
statotfi,  made  in  the  Lme  of  king  Edw.  3,  and 
Edw.  4,  and  other  &muus  kings,  for  explana- 
tion and  ratification  of  the  lawful  rights  and 
[Irivileges  belonging  to  tbe  subjects  of  this 
realm  :  laws  not  inflicting  penaltie*  upon  of- 
fenders, in  malii  prohibitit,  but  laws  declara- 
tiie  or  positive,  conferring  or  confirming,  ipso 
facto,  an  inherent  rigbt  and  interest  of  liberty 
and  Ireedom  in  tbe  spbiects  of  this  realm,  as 
tlieir  birthrigbiB  and  inheritance  descendable 
to  thair  heirs  and  posterity;  (Statutes  incorpo- 
rate into  the  body  of  the  common  law,  over 
which  (with  reverence  be  it  spoken)  there  is  no 
trust  reposed  in  the  king's  '  Sovereign  Power,' 
OT  '  Prerogative  Royal,'  tn  enable  him  to  dis- 
pense with  ihem,  or  to  take  from  his  gulHects 
that  hinhrigbt  or  inheritance  wliich  they  bare 
in  their  liberties,  by  virtue  of  the  common  law 
and  of  these  statutes. 

But  if  this  Clause  be  added  to  our  Petition, 
we  shall  then  make  a  dangerous  overture  to 
confound  this  good  destination  touching  what 
statutes  the  king  is  trutted  to  controul  By  dis- 
pensatisns,  and  what  not ;  and  shall  give  an 
mtimatioD  to  posterity,  as  if  it  were  the  opinion 
both  of  the  lords  and  commons  aBsemhled  in 
this  parliament,  that  there  is  a  trust  reppsed  in 
the  kinE,  to  lay  aude  by  his  '  sovereign  power,' 
in  some  emergent  cases,  as  wpU  the  Common* 
Law,  and  such  statutes  as  declare  or  ratify  the 
subjects  liberty,  oi;  confer  iatarest  upon  their 


S!07]  STATE  TRIALS,  3  Charles  I.  16'J8.—ProceedmgsmParliaineHtrdaliiiglo  [$QS 

To  theie  petition)  ihekingmadc  answer  as  be 
pleased,  somciimn  to  part,  sometime)  to  tb* 
nliole,  BOmetiiiies  bj  denial,  sometimes  tij  at- 
icDt,  sametimei  absolutely,  and  wiuetimf*  by 
q^ualiG cation.  Upon  tbese  rootiuas  and  peti- 
tions, and  the  kin^s  aniiveis  to  llieiD,  wai  the 
law  drawn  up  and  iugrossed  iii  ihe  slatote'roU 
to  bind  tbe  kingdom ;  but  tijis  inconvenieuc* 
was  fciund  in  thii  course,  that  ofteniiiiiea  tbe 
Bialutes  thus  framed,  nere  against  tlie  wnse 
and  nicBning  of  tlie  conuitom,  at  whose  desirei 
cbey  were  ordained;  and  iheietort:  in  tlie  2  Ilea. 
5,  hading  that  it  tended  to  the  violation  uf  their 
liberty  and  freedom,  whose  li^t  it  was,  and 
ever  liad  been,  tliat  au  law  should  b«  mad* 
without  their  mseot;  they  then  exbibited  ■  pe- 
tition to  the  king,  declaring  their  right  la  thit 
pBiticular  :  praying,  that  fiom  ihenceibrtb  no 
law  might  be  made  or  iu^oised  as  statutes,  by 
additions  or  diminulions  to  their  luoiions  or  pe- 
titions, that  should  change  their  sense,  or  intent, 
without  their  assent ;  which  was  accordingly 
establi<-hed  by  adt  of  parliumeDt.  Erer  sinc« 
tlien,  tlie  rigtit  hath  been,  at  the  use  was  be- 
fore, that  the  king  taketb  tlie  whole,  or  leavedi 
tlie  wliole  of  all  Bilb  or  Petitions,  exhibited  for 
the  obtaining  of  laws. 

From  this  ceurie,  and  from  the  time  when 
first  it  became  constaat  und  settled,  we  con- 
clude strongly,  that  it  is  no  good  argument,  be- 
cause yc  find  Saving  in  acts  of  parhameiits  be- 
fore llie  second  of  Hen.  5,  that  those  Saviogii 
were  before  in  the  petitions  that  b^at  thow 
statutes  :  for  if  tbe  petiliani  for  the  twtt  Loans 
to  much  insisted  upon,  which  petitions,  for  anj 
ihine  we  know,  are  not  now  extant,  were  never 
so  absolute,  jct  might  tlie  king,  according  to 
tbe  usage  of  those  times,  insert  the  Savinf^s  in 
hii  answers;  which  passing  from  thence  into  the 
Statute-Roll,  do  only  nve  some  little  colour, 
but  are  not  proof  at  aD  that  the  petiiions  also 
were  with  Savings. 

Thus  much  for  tlic  general ;  to  come  now 
to  the  particular  statute  of  35  £dw.  1,  which 
was  a  confirmation  .of  Magna  Charta,  with 
some  provisinn  for  the  better  execution  of  it, 
ns  Common  Law,  which  words  aje  worth  the 
Doting.  It  is  true,  that  statute  bath  also  a 
clause  to  this  elTect,  That  the  king,  or  his  liein, 
from  thenceforth  should  take  no  AkU,  Taxes, 
or  Prisaf^  of  his  subjects,  but  b;  comman'os- 
sent  of  all  the  rsalm,  saving  the  aatient  Aid* 
and  Prisage  due  and  accustomed. 

This  Saving,  if  It  were  grvnied,  (which  iinot, 
nor  cannot  be  proved)  that  it  was  as  w eU  in  the 
Petition  as  in  the  Act;  yet  can  it  no  way  im- 
ply, that  it  is  either  fit  or  sale,  that  the  cJausc 
now  in  quesCion  should  be  added  to  our  peti- 
tion ;  for  the  nature  and  office  of  a  Saving,  or 
exception,  is  lo  eiempt  particulars  out  of  a  ge> 
neral,  and  to  ratify  the  rule  in  ihiop  not  ex- 
empted, but  in  DO  sort  to  weaken  or  destroy 
the  general  rule  itself. 
Tne  body  of  that  law  was  against  all  Aids, 
id  Taxes,  and  Prisage  in  general,  and  was  a 
confirmation  of  the  comrton  law,  formerly  de- 
clared t^UagDaChactiii  the  Saving  was  oply 


persons,  as  those  other  penal  statutes  of  such 
uatuce  us  I  have  mentioned  befure;  whicb,  as 
we  can  by  no  lucnns  admit,  so  we  believe 
suredly,  that  it  is  far  from  the  desiiv  of  our  n 
gracious  sovereign,   to  aflect  so  vast  a  tr 
nhich  being  transmitted  to  h  successor  uf  a 
fereut  temper,  might   enable  him  to  alter  the 
whole  frame  and  fabric  uf  the  conunonnealth, 
and  to  resulve  that  government  whereby  tliit 
kingdom  hath  flourished  for  to  many  year 
ages,  under  his  mnjesty's  most  royal    -  - 
and  predecessors. 

Our  next  Reason  is,  that  we  hold  it  contrary 
to  all  course  uf  parliament,  and  absolutely  re- 
pugnant te  the  very  nature  of  a  Petition  of 
Might,  con»sting  «f  particular),  as  ours  doth, 
to  clog  it  with  a  general  Saving  or  Declamtion, 
to  the  weakening  of  tlie  right  demanded  ;  and 
we  are  bold  to  renew  with  some  confidence  our 
allegation,  that  there  can  be  no  precedent 
^ewed  of  any  such  clause  in  any  such  peliiious 

I  shall  insist  the  longer  upon  this  particular, 
and  labour  the  more  carefully  to  clear  it,  he- 
cause  your  lordshins  were  pleased  the  last  day 
to  nrge  against  us  Itie  statutes  of  35  and  38  of 
Edw.  1,  as  a^uments  to  prove  the  cnntrary, 
and  seemed  not  to  be  satisfied  with  that  which 
in  this  point  we  had  affirmed.  True  it  is,  that 
in  those  atatates  there  are  such  savings  as  jour 
lordships  haie  observed;  but  I  shall  offer  you 
a  clear  answer  to  them,  and  to  all  otlier  savings 
of  like  nature  that  can  be  found  in  any  statutes 
whatsoever. 

Tirit  in  the  general,  and  then  I  shall  apply 
particular  answers  to  the  particulars  of  those 
two  Statutes  ;  whereby  it  will  be  ihoif  evident, 
that  those  examples  can  no  ways  suit  with  the 
'  malternowio  hand.  To  this  end  it  will  be  ne- 
cessary, that  we  consider  duly  what  that  (|ues- 
tiun  is,  which  indeed  concerAeth  a  petition, 
and  not  an  act  of  parliameui.  This  being  well 
observed,  h}  shewing  unto  your  lordships  the 
difference  between  a  petition  for  ihe  law,  and 
the  law  ordained  upon  such  a  petition,  and 
opening  truly  and  perspicuously  the  course  that 
was  holden  m  fraoiing  of  suuutct  before  3  Hen. 
5,  different  from  tliat  which  ever  since  then 
hath  been  used,  and  i>  still  in  use  amongst  us, 
and  by  noting  the  times  wherein  these  statutes 
were  made,  which  was  about  one  hundred  years 
before  3  Hen.  5,  besides  the  differences  be- 
tween these  savings  and  this  clause;  I  doubt  not 
but  I  shall  give  ample  sHtiatactinn  lo  your  lord- 
ships,  that  the  commons,  as  well  in  this  as  in 
all  tbeir  ether  reasons,  have  been  must  careful  to 
rety  upon  nothing  hut  that  which  is  most  tnw 
and  pertinent. 

Before  the  second  year  of  king  Henry  5,  the 
comae  was  thus :  when  the  commons  were 
suitors  for  a  law,  either  the  Speaker  of  iheir 
house  by  word  of  mouth  from  tlien,  the  lords 
house  Joining  with  them,  or  by  some  Bill  in 
writing,  which  was  usually  called  their  Petition, 
moved  the  king,  to  onjaiii  laws  fur  the  redress 
of  such  iDiscliie6  or  inconvenieucet,  as  w«re 
fbnnd  ffiaToiit  unto  the  p«ople. 


309]         STATETRtAI^,  SCiiABtEsT.  lOQ8.—ae  Vber^  if  He  Stiijeet. 


ti  Aid*  anit  Prts^  in  paittcular,  m  well  de- 
■cribed  and  rcsliaincd  bv  ilie  nordt,  '  aocieiit 
'  ud  ■ccnstoiDcd,'  ibat  there  coulH  be  no  doubt 
vhat  could  be  tbe  dear  meniiiiiE  nad  eicent  of 


tobim,  waatteQkaowninitiaae  da;i,aDdu  not 
jet  foifotten. 

Tbete  Aida  were  three;  froni  ebe  king'i  te- 
aants  b;  knighu  serrice,  due  b^  the  ciiinmon 
liw,  or  general  custom  of  the  realm  :  Aid  to 
nntom  the  king'i  rojral  penon,  if  unhappily  hi; 
tboold  be  taken  priioner  in  the  wan:  Ala  to 
make  the  ktn^a  eldest  sou  a  knight,  and  Aid 
to  many  tbe  kiDg'j  eldat  dnugbtrr  once,  but  no 
mare:  Mid  that  those  were  Lhe  onljrAids  Imend- 
(d  to  be  lUTed  to  the  crown  b;  that  statute, 
•ppeareib  in  tome  cleaniexs  br'tbe  Charter  of 
king  Johij,  duted  ni  Runaing-Mefid  the  15lh  of 
Jane,  in  the  £flh  year  of  lus  reigtt,  wlicrein 
tkg;  an  enaneivted  with  an  exclusion  or  ail 
otbfT  Aids  wbotaoerer.  Of  this  Clianer  I  have 
hat  one  of  tbe  originois,  wherEOu  1  beseech 

Eir  lordlhips  to  cast  jour  ejres,  and  give  me 
ye  to  read  tlie  Kry  word*  which  concern 
tUt  peint.  nese  words,  oij^  lords,  arc  thus: 
'Nullam  tcutigiuoi  I'el  nuxiliuro  pouatur  in 
'regno   nostro,  niai   per  comtaune  cooaiJium 

*  regni  noatri,  niu  ad  corput  nosin^ta  redim«>- 
'  dim,  et  priniogeaiiuni  filioin  nDatrum  militem 
'  bcienduBi,  et  ail  fUiam  nnitram  priniugcaitam 
'  Kniel  inaritaDdam,  et  ad  hoc  oon  5«t  uisi  ra- 

*  Uouabile  auxiliuio.' 

Touching  Pritage,  the  other  tfainj;  eiceptcd 
by  ihii  Statute,  it  i*  also  of  a  partjcular  right 
to  tbe  crowD  so  well  koown,  tbnt  it  needpih  ao 
dcKTiplioii,  the  king  being  in  pouessionof  it  by 
ewy  day'*  usage.  Tt  it  to  take  one  tun  of 
■ine  before  the  mast,  and  another  behind  tbe 
mut,  of  erery  ship  bringing  in  abore  twenty 
lUDiofwine,  and  here  discbar^og  ibeoi  bj  way 
ofmerchandue. 

But  oar  i'«tition  consisteth  altogether  in  pai>- 
ticnlara,  to  which  if  any  general  Saving,  or 
word*  amoautlDg  to  one,  ibouid  be  annexed,  it 
cannot  work  to  confinu  things  not  excepted, 
wUch  are  Boiie,butto  confound  thing*  in  eluded, 
■kich  arc  kQ  the  ^arts  of  tbe  Petition ;  and  it 
iButt  needs  bcf>et  this  datigercu*  exposition, 
ihti  the  Rights  and  liberties  of  tbe  subject, 
declared  an^  demanded  by  tbii:  Petition,  are 
not  theirs  absolutely,  but  nwmodo  ;  not  to  con- 
liaue  always,  but  only  to  take  place,  when  tbe 
king  Is  pleased  not  to  exercise  that  '  sovereign 
'  power,'  wherewith,  this  clauae  admitted,  be 
is  tfusted  for  the  pratectiou,  safety,  and  hap- 
piness  of  lui  people.  AnJ  tbui  that  birthright 
and  inberitiuice,tvbicb  we  ha*e  io  our  liberties, 
tball  by  ost  own  assents  be  turned  into  a  isere 
tenancy  at  will  and  suiTeranoe. 
Touching  the  Staiote  ofss  Edw.  1.  Articull 

XChartas,  the  scope  of  that  Sinlute,  among 
tbings,  beioK  to  provide- for  tbe  better 
obecriii^  and  maintaining  ef  Mi^na  Charts, 
bath  in  it  neverttaelesi  two  Savings  for  llie 
king;  the  one  paitieutar,  as  I  take  it,  to  pre- 
jttTc  tbe  aniieiU  jirisage,  due       '  ' 

TOt.  ilL 


I  of  wines  and  other  goods ;  the  Other  geoenl, 

igniorj  of  the  crown  in  all  tiling*. 
To  tbne  two  Saviiifs,  besides  tbe  Sirmer  an- 
rere,  which  rany  he  for  the  luoit  pan  upplied 
I  this  statute  as  well  at  to  the  former,  I  add 
these  fiirther  auswers :  tbe  first  of  iliese  iwi> 
Savttlgs,  is  of  the  same  prisage  of  wiiiet,  wbicll 
s  excepted  in  tlie  25  Edw.  i,  but  iu  some  more 
:leaniess ;  for  that  bete  the  word,  wines,  ii  ex- 
pressly anncieU  to  the  word,  prlsa^r,  which  I 
take  (or  to  much  to  be  in  eipoeitiou  of  the 
former  law:  and  albeit  these  words,  and  of 
other  goods,  be  added,  yet  do  1  take  it  to  be 
but  a.  particular  Savinp,  or  exception,  wliidi 
being  quulilied  with  tlw  words,  uniieiil,  due, 
and  accustomed,  is  not  very  daagerous,  n  ir  cnn 
idersiouil  of  pritage  or  levies  upon  goad* 
of  nil  sorts  at  the  king's  will  and  pleasure  ;  bw 
only  of  the  old  and  certain  cnstoiiis  u|iau  wool, 
woilllels,  nnd. leather,  which  were  due  to  the 
crown.  Ions  before  tbe  making  of  thi*  atttute. 

For  the  Tatter  of  tlie  two  sacing*  in  this  act, 
which  is  of  die  more  unususl  nature,  aud  sub- 
ject to  the  more  exceplioD ;  it  is  indeed  geoa- 
ral,  and  if  we  may  believe  the  concurrent  rela- 
tions of  tbe  Histories  of  tbow  times,  a*  well 
those  that  nrc  now  printed,  as  those  tliat  remain 
only  in  manuscripts,  if  gave  distaste  rmm  the 
bci-iniirng,  and  wrougbt  no  good  elFtict,  but  pro- 
duced 5Ticlt  distempers  and  troubles  in  the  Hale, 
as  we  wish  may  be  buricil  in  perpetual  oblivion; 
and  that  the  like  saving  In  llicse  anil  future 
times  n)ay  never  breed  the  like  disturbance : 
6ir  tirom  hence  arose  a  Uulonsy,  that  Magna 
CharU,  which  detUiu'ed  (he  ancient  right  of  tlie 
subject,  and  wns  an  nbsolute  law  in  itu:ll^  being 
now  confirmed  by  a  latter  act,  with  ibis  addi- 
tion of  a  general  laving  j  lur  tlie  king's  r^ht  in 
all  things  by  lhe  saving  was  weakened,  and  tha( 
made  doubti'ul.  which  was  clear  before.  But 
not  to  ilepart  from  our  main  ground,  which  is, 
that  taviugs  in  old  nets  of  psrliament,  before 
the  S  H.  5,  nrc  no  proof  ihut  there  were  the 
like  savings  in  tlie  petitions  tor  those  acts ;  lat 
me  observe  unto  yuur  lordships,  and  so  leave 
this  point,  tbut  albeit  this  pctitiun,  whereon  ibis 
act  of  aa  Ed.  1,  was  groundud,  be  perihlied; 
yet  bntb  it  pleased  God,  that,  tiie  very  frame 
and  context  of  the  act  itself,  a*  it  is  draiva  up, 
and  entered  upon  the  Statute-roll,  and  printed 
in  our  book,  duth  manifestly  import,  that  tbia 
saving  came  in  by  the  king's  ansner,  and  was 
Bolin  the  originalpctitioD  of  the  lords  and  com' 
raons;  for  it  cometh  in  at  tlie  end  of  the  acc 
after  ie  wonl*  (ie  roy  It  veutj  which  com- 
monly are  the  words  uf  ilie  rny^d  asecn 


kind's  raunsel,  and  the  rest  who  wer 
at  [he  making  of  this  oidioiince,  did  ialfind  tbe 
same  saving ;  yet  ii  not  (bat  cimclinive,  »<•  lunig 
us  by  the  form  of  those  tinivs,  tbe  king's  answer 
working  upon  the  wateiiiiU  of  tke  petition, 
tnifiht  hie  conceived  by  siime  to  make  the  lair 
effectual,  though  varying  frum  tha  I'rume  of  the 

The  next  Beasoo  ahick  the  Coaoiuns  have 


«U]  STATE  Trials,  3  Charles  I.  ICSS. 

comiutnded  me  to  use,  far  which  the;  still  de- 
«ire  to  be  «pnred  rram  adding  thiti  clause  to 
their  Petition,  is  this  s  This  offensive  low  of  US 
E.  1,  irhich  coiilu-mcd  Mognn  Chartn,  nith  a 
Mving,  rested  not  long  \a  pence,  for  it  gave  not 
.thnt  snlisfaction  lo  the  lonls  or  people,  as  wns 
T^uisite  tliey  should  have  in  a  case  so  nearlj 
concerning  them  :  nnd  therelore  about  33  or 
31  of  the  m-nie  king's  reign,  a.  liitter  act  of  jiar- 
hament  wits  made,  ivhercby  it  nas  enacted,  that 
all  men  shoold  have  iheir  Inwii,  and  iihcrtipa, 
and  free  cu;toiii!>,  as  lurgel;  and  wholly  as  they 
had  used  lo  hnvo  at  any  time  when  they  had 
Ihemhcst;  and  if  any  siiiotej  had  been  made, 
or  any  customs  brought  in  to  the  contrary,  that 
all  such  statutes  and  customs  should  be  void. 

This  wag  the  first  law  ^liich  1  call  now  to 
mind,  that  restored  Mngna  Cbarta  to  the 
original  purity  wherein  it  was  first  moulded, 
albeit  it  hath  since  been  confirmed  nboie  twenty 
limes  more  by  several  acts  of  parliament,  in  the 
rwgns  of  diver*  most  just  and  gracious  kings, 
Kho  were  most  apprehensive  of  their  rights, 
and  Jeatoui  of  their  honuurs,  and  always 
without  savings;  so  as  if  between  32  nnd 
34  Edw.  1,  Magna  Charta  stood  blemished 
with  many  savings  of  the  kind's  rights  or  seig- 
niory, which  might  be  conceived  to  be  above 
the  W ;  that  stain  and  blemish  «'ns  lorg  since 
taken  away,  and  cleared  by  those  many  abso- 
lute declarations  and  confirmations  of  thit  ei- 
cellent  law  which  followed  in  after  ages,  nnd  so 
it  standetli  at  tliis  dH.y  pureed  and  exem^ited 
now  from  any  such  saving  whatsoever. 

I  beseech  your  lonlibips  tberefore  to  observe 
the  circumstance  of  lime,  wherein  we  offer  this 
Petition  to  be  presented  to  your  lordships,  and 
by  ns  unto  his  nniicsty ;  Do  we  otiler  it  when 
MunaGbajtftstands  clogged  with  savings?  No, 
mj  lords,  but  at  this  day,  when  Intter  and  bet- 
ter confirmations  have  vindicated  and  set  free 
that  law  from  all  eieeplions;  and  shall  we  now 
■nnert  another  and  worse  saving  to  it,  by  en  un- 
necessary clause  in  that  Petition,  which  we  ex- 
pect should  have  the  fniit*  and  effects  of  a  law  f 
Shall  we  ourselves  reliotjuish  or  adulterate  that, 
which  cost  our  ancestors  soch  care  and  trouble 
lo  purchase  and  refine  >  No,  my  lords,  but  ns 
we  should  holdourseUesunhappy,  if  we  should 
not  amend  the  wretched  estate  of  the  poor  sub- 
ject, so  let  us  hold  it  a  wickedness  to  impair  it. 

Whereas  It  was  further  uiged  by  your  lord- 
ships, That  to  insert  this  clause  into  our  Pctt- 
'  tion,  would  be  no  more  than  to  do  (hat  again 
at  your  lordsliip'a  motion  and  request,  which  we 
bod  fi>nner1y  done  by  the  month  of  our  Speaker ; 
and  that  there  is  no  cause  why  we  jhould  re- 
cede from  that  which  so  solemnly  we  have  pro- 
fessed 1  To  this  I  answer  nnd  confess,  it  was 
ibea  in  our  hearts,  and  it  i|  now,  and  slialt  be 
ever,  not  to  encroach  on  his  mnjesiv's  sovereign 
power.  But  I  beseech  ^our  lordships  to  oV 
aerve  the  different  occnnim  nnd  reference  of 
that  protestadcn,  and  of  this  cleuse. 

Thu  was  a  general  Answer  ton  general  Mes- 
Mge,  which  we  received  from  his  majesty,  watn- 
iiHiu  not  to  UKroach  upon  hii  Prerogative;  to 


.^Proceedings  in  ParHameut  relatiag  to  [212 
which,  like  dutiful  and  loving  subjects,  we  an- 
swered at  full,  HCcordiJig  to  the  integrity  uf  our 
own  hearts;  nor  nastbere  any  dontierin  mailing 
such  an  answer  to  such  a  message,  nor  could 
we  Rostver  mare  truly  or  more  properly :  but 
did  that  Answer  extend  to  acknowledge  '  a  so- 
vereign poner'  in  the  king,  above  the  taws  and 
statutes  mentioned  in  our  Petition,  or  controtd 
the  Liberties  of  the  Subjects,  tlifrein  declared 
and  demanded  ?  Ko,  my  lords,  it  hath  no  refe- 
rence to  a[iy  such  purticutars ;  and  the  same 
words  which  in  some  cases  may  be  fit  lo  be 
used,  nnd  were  unmannerly  to  be  omitted,  can- 
not in  other  cases  be  spoken,  but  with  imperii* 
nency  at  the  Icnst,  if  not  with  danger.  1  have 
formerly  opened  my  reasons,  proving  the  danger 
of  this  clause,  and  Am  commanded  to  iUustral* 
the  impertinency  iif  adding  it  to  the  Petition,  bj 
a  familiar  case,  which  was  put  in  our  house  hj 
a  learned  geiitlemoD,  and  of  my  oHn  robe:  tte 
case  is  thii,  two  manors  or  lordships  lie  adjoin- 
ing together,  and  pcrcliai«;e  inlermiied,  so  as 
there  is  some  dilflculty  lo  discern  the  tme 
bounds  of  either;  as  it  may  be  touching  the  coit- 
fincs  where  the  Liberty  of  the  Subject,  and  the 
Pru-ogative  of  the  Crown  do  border  each  upon 
the  other ;  lo  the  one  of  the  riianors  the  king 
hath  clear  right,  and  is  in  actual  possess ioD  of  it, 
but  the  other  is  (lie  subject's. '  The  king  beine 
mis-Informed,  that  the  subject  hsili  introded 
upon  his  majesty's  manor,  asksth  his  subject, 
ufaetherhc  doth  enter  upon  his  majesty's  mnnor, 
or  pretendeth  any  title  to  it,  or  any  part  of  it. 
The  Subject  being  now  justly  occa^oned, 
maketh  answer  trulv  to  tlie  king,  that  he  hath 
not  inlmdcd,  nor  will  intrude  upiio  his  maj^ty's 
manor,  nor  doth  make  any  chum  or  title  to  ir, 
or  any  part  of  it.  This  answer  is  [iroper  and 
fiiir;  nny,  it  were  unmannerly  and  ill  done  of 
the  subject  not  to  answer  upon  this  occasion. 
Afterwards  the  king,  npon  colour  of  some 
double  or  single  mailer  of  record,  seiietb  into 
his  highncss's  hands,  upon  a  pretended  title,  the 
subjtct's  manqr;  the  subject  then  exhifaileth 
his  Petition  of  Right  to  his  majesty,  to  retain 
restitution  of  his  own  manor,  and  therein  layeth 
down  title  to  his  own  manor  only ;  Were  it  uot 
improper  tind  absurd  in  this  case  for  him  to  tell 
the  king,  that  he  did  not  intend  to  make  nn* 
'  '  majesty's  manor,  which  la 
■'•■'--aita'ere.     This  case, 

r , purpose  well,and  no- 

Ubly  eip[aii\  the  nature  of  our  Petition. 

Why  should  we  speak  of  leaving  entire  ilia 
king's '  Sovereign  Power,' wliereon  we  encroach 
not,  while  we  only  seek  to  recover  ourowfi  Li- 
berties and  PriviltE^s,  which  have  been  seized 
upon  by  soma  of  the  kine's  ministers  P  If  oar 
Petition  did  trench  actually  upon  his  majesty^ 
prerc^tiye,  would  our  saying,  that  we  intended 
It  not,  make  the  thing  otherwisi;  than  the 
truth  i 

My  lords,  there  needeth  no  Prutcitalioo  or 
Declaration  lo  the  contrary  of  that  which  we 
have  not  done ;  and  to  put  in  such  a  Clanae, 
cannot  nrgne  less  than  a  fear  in  ua,  as  if  we  bad 
invaded  it :  which  wa  held  Nured,  and  aie  «^ 


S13]         STATE  TRIAI^,  3  Chablu  I. 

■DTEd,  thnC  »e  hnre  not  touched  eiiber  in  our 
words  or  io  our  intentious.  Aiid  touching  yiiur 
lordships  obi>erv*iion  upon  the  ivord  (leave),  if 
il  bt  iioE  a  prupei  word  to  give  any  new  thing 
n  the  Liog,  sure  vie  ere,  it  u  a  word  danecrous 
io  auotber  sense ;  for  it  may  amount,  viuhnut 
allqueslion,  U)  ncLnowlcdije  an  oldrij^htof'  S4>- 
'  Tercign  poxcr'inhji  majesty,  above  those  Inw* 
Mid  statutes  whereon  ouly  our  liberties  are 
(bunded;  a  doctriue  which  nc  most  humbly  crave 
your  lot^sliips  leave  fredy  to  protest  against. 
And  laryour  lordghiij'f  proSenng,  tliat  some 
taving  should  be  requisite  for  prescrration  of  his 
nijjmy's' soverrign  power'  \a  respect  our  Peti- 
tion runneth  in  larger  words  than  our  laws  and 
UBtutesnliereonwegroundit;  whht  is  ihisbutft 
dearcoufession  by  yaurIords1i'rp,thaI  this  clause 
vas  Intended  by  you  to  be  that  saving  p  For 
'other  ssting  Uian  ibis  ws  find  noHenilercd  by 
;uu:  and  if  it  be  such  a  snving,  how  can  il 
Hind  with  yuur  lordships  other  arguments,  that 
it  should  be  of  no  olber  effect  llm.ii  our  former 
(ipressioii  to  bis  majesty  by  the  mouih  of  aor 
SpcaLer?  But  I  will  not  insist  upon  collections 
of  this  kind ;  I  will  onW  aliew  you  the  reason* 
oi'  the  commoDS,  why  this  Peution  needetli  no 
nch  saving,  nlbeit  the  words  of  tliese  statutes 
be  eiceeded  in  the  declaratory  part  of  our  Pe- 
tition :  those  cliiugs  that  are  within  ihe  eijuitj 
ind  true  meaning  of  a  statute,  are  as  good  laws 
u  those  which  are  contained  in  the  express 
Inter,  and  therefore  the  statutes  of  the  42  Ed. 
3, 36  H.  3,  ttot.  Par.  ii.  IS,  and  other  the  ita- 
lutei  made  in  this  time  of  king  Edw.  3,  fpr  the 
nplination  of  &Iagna  Charts,  which  hath  been 
»  often  vouched  in  tliis  parliament,  though 
ibcj  differ  in  words  from  Magna  Cbartn,  had 
Ho  saving  annexed  to  any  of  them,  because  they 
«nncied  more  ihnn  nas  contained  iu  elTect  in 
lint  good  law,  under  the  words,  '  per  legale 
'jadiciuiD  parium  9uorum,autper  legem  terrs;' 
Mich  by  these  loiter  laws  are  expounded  to 
inporj,  that  none  should  be  put  to  answer  wlth- 
•ut  presentment,  or  matter  of  recnrd,  or  by  due 
process,  or  nrit  original ;  and  if  othetnisc,  it 
■hould  be  void,  and  hnldeo  for  error. 

Il  hath  not  been  vet  shewn  unto  us  from  your 
Iwdsliipt,  that  we  nave  in  any  of  our  expres- 
■ions  or  applicntions  strained  or  misapplied  any 
of  the  lans  or  Etnliit«s  whereon  ne  ao  insist ; 
■Bd  we  arc  very  confident  and  well  assarod, 
ibatiia  such  mistaking  can  be  assigned  in  any 
point  of  onr  petition  now  under  question:  If 
ibtrefore  it  do  not  exceed  the  true  sense  and 
CDDStruction  of  Magna  Cbartn  in  the  subsequent 
bos  of  explanation,  whereon  it  is  grounded, 
■hit  reason  is  there  to  add  a  saving  lo  this  pe- 
tition more  ihaii  to  those  taws;  ^nce  we  desire 
to  transmit  the  fruits  of  these  our  labours  lo 
poMeritji,  not  only  for  the  justification  of  our- 
leKes,  m  right  of  otir  present  and  their  future 
hberties,  but  also  for  a  brave  p^pression  and 
petpelual  testimony  of  that  grace  and  justice, 
ahicb  we  assure  ourselves  we  shall  receive  in 
luj  majesty's  speedy  and  cle.ir  answer  ?  This  is 
the  thag  we  seek  for,  and  this  is  the  thing  we 
hoped  for,  and  this  is  the  thing  only  wilt  settle 


1G23 the  L&erty  cf  Ote  Subject. 


[3U 


such  an  unity  and  co'olidence  betwixt  his  ma- 
jesty and  us,  and  raise  aucIi  a  clicarfulness  In 
th,e  hearts  of  all  Lis  loving  subjects,  os  will 
make  us  proceed  unnnimousty,  and  wiih  all 
expedition  to  supply  him  for  his  great  occa^ona 
in  such  measure,  and  in  such  way,  as  may 
mflbe  him  safe  at  home,  and  feared  abroad, 

Sir  Uinry  Martin.  My  lordt,  the  work  of 
this  day,  wherein  the  bouse  of  cnminons  harh 
employed  the  gentleman  that  spoke  last,  and 
myself,  was  to  reply  to  the  Answer,  which  it 
hath  pleased  the  Lord-Keeper  to  make  to  thos* 
Reasuns,  which  we  had  offered  to  your  bnl- 
ships  consiileration,  In  justification  of  our  refu- 
sal, not  to  admit  iuta  our  Petition  the  Addition 
commended  by  your  lordships.  Which  Rea-  . 
sons  of  ours,  since  they  have  not  given  such 
satisfaction  as  we  di^ired,  nn<l  nell  hoped,  as 
by  the  Lord-Keeper's  Answer  appeared ;  ic 
was  thought  fit,  for  our  better  onicr  and  method 
in  replying,  to  divide  the  LortJ-Kecper's  An- 
swer into  two  parts,  a  legal  and  a  rational  i 
The  reply  to  the  le^al  your  lordships  have 
heard,  myself  comes  incrusteH  lo  reply  to  tha 
rational,  which  also /consisted  of  two  branches, 
the  first  deduced  from  the  whole  cmitext  of  the 
additional  clause,  the  second  enforcdl  oiit  of 
some  paf  t 

In  the  first  were  these  Reasons,  That  the 
same  deserved  our  acceptance.  1.  As  satis- 
factory to  the  king ;  8.  To  your  lordiiiips ;  5. 
Agreeable  to  nlin^t  ourselves  had  oltcn  protest- 
ed, and  professed  expressly  by  the  mouth  of 

1  must  confess  thrie  motives  were  weighty 
and  of  great  fgrce ;  and  tlierefore,  to  ai'Oid  Mis- 
understanding and  misconceit,  wliich  otherwise 
might  be  taken  agninst  the  houK  of  commons 
upon  the  refusal  of  the  propounded  Additiori, 
it  is  aecessnry  to  state  the  question  rightly,  and  . 
to  set  down  the  true  didereuce  between  your 
lordships  and  us.  Now,  indeed,  there  is  no 
difference  or  question  hctiveeli  your  lordshins 
and  us,  couccrning  this  nddidonal  clause  in  the 
nature  and  quality  of  a  propssitlon.  For  so 
considered,  we  say  it  is  most  true,  ond  to  be 
received  and  embraced  by  us, '  in  toto  et  qua- 
*  libet  parte  el  qualibet  syllaba;'  yea,  and  went 
that  the  question,  we  should  add  lo  the  Addi- 
tion, and  instead  of  due  regard,  say  we  have 
had,  have,  and  ever  will  have,  a  special  and 
singular  regard,  whereto  leave  entire  Sovereign 
Power.  But  this  were  to  intimate,  as  if  we 
had  first  crojjt,  and  then  left  it ;  but  our  regard 
was  lo  acknowledge  and  confess  it  sincerely, 
and  to  maintain  it  consliintly,'  even  to  tn0 
hainrd  nf  our  gonds  and  lives,  if  need  b^ 

To  which  purpose  your  lordships  may  be 
pleased'  to  remember  that  strict  Oath  eveij 
member  of  the  bouse  hath  taken  this  very  ses- 
sion, in  these  words  :  '  1  (A.  B.)  do  utterly 
'  testify  and  declare  in  my  conscience,  That 
'  the  king's  highness  is  the  supreme  sovereign 
'  gnvernor  of  this  realm  in  all  causes;  &c.  and 
'  to  mv  uimost  power  will  ussisi  tuid  defend  all 
'jurisdictions,  privileges,   prehemioences   and 

amborities,  granted  or  belonging  to  the  king'* 


fI5]  STATE  TRTAI^,  SCbaklmI.  Itm.'^PivCKdmgim  Par&menrrtJatviglo  [J» 

'  highness,  oruiilteilor  nnnned, to  iheimpctial    induce  u9  to  accept  it.     But  ander  bit  lant- 
'  cronn  uf  this  reHlm,  &C.' 

So  ItiuE  yaar  lonJaliiijs  n««d  not  to  borrow 
fcnm  our  pmiestatiuiu  nny  exbortations  lo  us, 
tu  eutenaiii  u  writing  in  assistance  of  the  kiiig't 
EuvtTcign  power,  siuce  vie  tlaiid  ublit;ed  by  iTie 
uosi  siicrcd  build  of  a  stilcmn  oiilh,  tu  nssiat 
and  defeiiil  the  smne,  if  cnuse  or  occnsinn  so 
■ef[uired.  So  ihut  Uie  only  question  between 
^our  iDtdsbips  and  ue,  is,  whether  this  clau^ 
tli'>uld  bu  addeil  (o  ouf  petition,  nnJ  received 
iiilo  it  ns  partlLereoff  Wliich  to  do,  jour  lord- 
ships reusoii's  have  not  penundcd  us,  becnme 
•o  to  udiuit  it,  wera  tu  overthrow  the  fubric 
and  substance  of  oni  Petition  of  H^t,  and  to 
nnnihilate  the  right  preteoded  b;  us,  aiid  ibe 
Petition  itsell'iu  eOect :  For  these  words  being 
added  lo  our  Petition,  vii. '  Wc  iiumbly  present 
'  this  E'etition,  &c,  nith  due  regard  to  leave 
'  entire  juur  soverei^ti  power,  &c.'  do  include 
Kuuiifestly  an  exception  to  our  Petttiou;  and 
wi  exrepiion  bciug  of  the  nature  of  the  tliiu; 
Kbefeuntu  it  is  an  exception,  ■  excepiio  est  de 
'  regula,'  must. of  necessity  destroy  the  lule  or 
petiiiou,  so  far  as  to  the  caac  excepted;  '  Ei- 
*  ceplio  tifinat  r^ulnm  in  coiibus  non  eiceplis, 
'  in  casibua  exceptui  deslruit  regulam.'  Then 
ibis  cunttruclion  foDoweth  upon  our  Petition 
tiius  entargtu),  ttiat  after  tie  bare  petitioned, 
that  no  freentan  slmuld  be  compelled  by  iinpri- 
■oament  to  lead  or  coutribnle  money  to  his 
MiaJBiiy  without  his  assent  in  parlionieiit,  nor 
leceive,  agaiost  his  will,  Suldiers  iniu  ius  liaus«, 
or  undergo  b  coDUoission  of  Martial  Law  for 
life  or  member  la  lime  of  peace;  we  slimild 
add.  Except  bis  majesty  be  .pleased  to  require 
our  moneys,  and  imprison  us  for  nnt  lending, 
and  seud  soldiers  into  our  iiousei,  and  execute 
■s  by  martial  law,  in  lime  of  pence,  by  virtue 
«f  hi^  sovereign  power :  which  coastruction,  as 
it  foUoweih  necessarily  upon  tliis  eulaifeotent, 
to  it  coocludeth  against  our  right  in  ihe  an- 
nibses,  and  utterly  fru-iiralcth  ejl  our  Petition; 
neither  mtiy  it  seem  strange,  if  this  clause  addi- 
tional (which  of  itself  is  in  quality  of  a  prano- 
wtinn  we  confess)  being  added  ti>  our  Petition 
(which  also  is  trne).should  overthrow  iha  very 
Irame  and  &bric  of  it,  seeing  tba  lo!;icians 
tabir  liuowled|(e  of  sticb  a  fallacy,  called  by 
ihein, '  FoIIbgib  i  bene  diiiais  ad  mala  con- 
'  juncta,'  Horace  the  poet  givetb  an  instance 
tu  tlus  purpose,  in  n  pnmter,  who  uhen  he  had 
painted  tha  heud  of  a  man  according  to  art, 
would  then  join  to  it  the  iirck  of  a  horac,  and 
•o  raarr  the  one  an<l  the  other  ;  nliereas  each 
by  itseCf  might  have  been  a  piece  of  right  good 
workmanship. 

The  second  hmnch  of  my  Lord-Keeper's 
Bitionul  part  was  eo forced  out  of  the  last  words 
of  this  Addition,  by  wbicb  his  lordship  laid, 
that  tbey  did   not   leHve  intire    all  sovereign 

Sower,  but  that  wberewiih  hismaje!>tyis  trusted, 
>i  the  protection,  safety,  und  Imppiiiod  of  thJe 
people  i  ni  if,  Jiis  Inrdship  would  infer,  that 
eovereignpoH'er  wherewith,  &c.  in  this  place  to 
be  Icrmiiitiin  diaiiautntem,  a  term  of  diminution 
nr  quali£catioD,  and  in  that  cuuMderaiion  might 


ship's  correction,  we  cannot  so  iutrrpret  ii 
for  lirst  we  are  assured,  that  there  it  no  sove- 
reign power  wherewith  bis  mnjesly  is  trustot, 
either  by  God,  or  mnn,  but  only  that  which  is 
for  the  protection,  safety,  and  bappinets'  of  his 
people;  and  therefore,  that  limitation  can  make 
no  impression  upon  usi  hut  we  conceive  it 
miher  in  this  place  to  have  the  force  ternu'n* 
aduugcniii,  tu  be  a  term  ofiinportaat  advantaga 
ngaiust  our  Petition,  a  term  of  restriction,  and- 
thai  wJieMsoever  his  mnjetty'i  soveMign  po*N 
should  be  exercised  upon  us  in  all  or  any  the 
paHiculars  mentioned  in  the  Petition,  wv 
should,  without  further  enquiry,  submit  there- 
unto, as  assuming  and  taking  It  pro  cs/Mrua,  it 
conduced  to  our  safety  niM  bappinets,  &c 
Since  tbcrelbre, .  (as  the  PetJiion  u  now  con- 
ceived] it  carrieth  the  form  and  face  of  a  pic- 
Itire,  which  representcth  to  tlie  life  the  pressore* 
and  grieruncM  of  the  people,  with  the  easy 
remedies ;  and  tberelbrc  we  hope  that  his  ma- 
jesty, casting  upon  it  a  Kracious  eya,  will  com- 
passionate his  poor  loyal  subjects,  aod-aflord  ft 
comrortuble  answer. 

I  do  humbly  praise  your  lordships  not  To  majT 
or  blcmiib  the  grace  and  bee  of  this  picture, 
wiib  this  unnecessary  addition ;  and  unnecef- 
SBTT  I  prove  it  to  be,  according  to  that  mle, 
*  ^ipresito  ejus  quod  tacite  inest  nihil  ope- 
'  ratur.'  Andaovenrign  powpr,  in  cases  whera 
it  haih  place,  and  ought  to  be  used,  ie  always 
necessarily  tinderslood,  and  thou|th  not  ex- 
pressed, yet  suppliad  by  reasonable  intend ouuit, 
or  by  the  opinion  uf  all  learned  men. 

And  therefore  it  nether  is  nor  eau  Im  by  ur 
expressly  included,  especially  in  this  Petition, 
where  the  Addition  thereof  would  make  Such  » 
confusion  of  the  whole  sense  and  substance. 

The  £in';'s  Sovereign  Power  and  Prerc^ativft 
is  always  nlile  to  save  itself;  andif  it  worenui^ 
we  muti,  wirhoiit  this  Addition,  save  it  to  our  - 
utmost  powers,  if  we  will  save  our  oath,,  and 
save  ourselves.    The  true  state  of  the   aaiatf 


upon  what  grounila  your  lordships  are  so  at 
nest  to  uTj^e  upon  tliein  this  Addition  to  be  in- 
serted into  iheu-  Pitilion;  thev  nothing  dmibt,. 
but  the  same  proceeded  out  oi  a  solicitude  aDcl 
fear,  which  your  lordiliips  have,  lest  otherwiae^ 
tlie  simple  and  absolute  passage  of  tliis  Peiitioa 
might  be  construed  hereafter  in  prejudice  of 
his  majesty's  sovereign  power:  and  this  vour 
lordihips  sidicilude  and  fear  proceedetb  Iram 
your  love,  as  the  poet  saith.  <  Re«  est  soIUcitt 
'  plena  timoris  ainor.'  But  1  humbly  pray  your 
lordships  to  exooiine  with  us,  the  eroundi  of 
this  your  solicitude  and  fear;  which  grounds 
must  Deeds  be  laid  either  upon  the  words  of  ih* 
Petition,  ur  the  intention  of  the  petitioners. 

Upon  the  words  there  is  no  possibility  to  lay 
them,  for  tbciein  is  no  mention  made  of  the 
So  vf  reign  Power;  and  were  tlie  word*  doubtful, 
as  tlius,  VYe  pray  the  like  things  be  not  don* 
hereafter,  uoder  pretext  uf  your  majosty's  so. 
lereifn  ^wtr ;  jat  ia  respect  of  the  prote»^ 


Goo;;lc 


11T]         STATE  tSlALS,  3Cii.mi!s!.  ieflS.-^£tSer9</''^^^^-  '       [A* 


Uipret^ini;, 


and  subscqne 


ID  the  PeCiQUB,  lach  doobthl  word* 
nublj  to  bt  incerpreled  mlj  of  nieh  lomei;!) 
fomi  (S  wn^  applicable  to  the  coms  wbtnrin  it 
m  eieciscd  ;  aad  of  sucb  wvereitn  power  as 
ibnnM  b«  juKl;  practiMd.  BoE  there  nre  no 
ad  doubtfol  wordi,  and  (facrefereh  follaweth, 
llat  jour  Inrdibius  lear  and  solicitude  must  be 

Cdrd  upon  tneiatcntioTi  of  tlie  p«utiaiieri. 
joar  lonlibips  will  know,  tliat  the'  house 
vfcouitions  i>  not  ignorant,  that  in  a  lession 
(fniiiMDcot,  ifaongh  k  contiane  so  manj 
VMS,  isthn  bath  done  days,  nt  there  is  oo- 
Iking  prim  ct  mnfn-isf,  but  all  Ihings  are  held 
md  lokeit  M  done  &t  one  time.  ir»o,  wbac  a 
«nn{e  collection  wu  this,  that  atthesaine 
nm:  theboase  of  cmnmons  iboaM  oblige  I hem- 
drrt,  bv  a  feaffol  abjuration,  to  aisiit  and 
defend  sll  privileges  and  prerogatives  belonging 
ulle  kingj  and  at  ibeaanic  time  by  ■  PetitioD 
[nuiioialT  courejed)  endeavoar  or  intend  lo 
^mt  and  deprne  the  king  of  some  pren>- 
ptira  belonging  to  his  cronn  i  If  therefore 
■aril  far  and  solicitude  can  neitber  be  srounded 
ln»  the  wardi  of  the  fetitron,  nor  inlciiiion 
MttiE  pctitjimen,  I  hambly  prayjoar  lordshipt 
« Itj  tfaem  aside.  Aa  ne  do  belien  (hat  the 
fnpnition  of  this  Addition  ftont  ]>our  lordstn^s 
m  not  onl J  exanaUe,  but  commendable,  aa 
rxKceding  ftotn  yonr  lore  ;  so  now  baTisg 
tord  tiiir  reasoiia,  your  loidshTps  would  real 
tUBfied,  (fast  oar  ratiia.il  to  admit  them  into 
aor  l>et^ii,  proceedeth  ftom  the  conacience  of 
thint^rity  attd  aprithtneaa  of  our  own  hearts, 
ttat  we  in  all  tbia  PetnioB  have  ao  sixji  end  to 
ah«e  or  dinitiniah  the  king's  Just  prerogntiTe, 
Aad  so  much  in  reply  to  that  rational  part, 
oWebj  taj  lord-keeper  laboared  to  peranade 
dKcntenainroent  of  tfara  Addirion. 

Thit  being  done,  it  pteeaed  the  Houae  of 
CtauDon*  to  iBstnict  and  finniiih  me  with  cer- 
ain  lUatoni,  which  1  aball  nae  to  yoor  bnhbipa, 
tt  procure  yonr  absolute  conjoDctioit  with  us 
ia  pRsenting  this  Petition ;  which  albeit  I 
catiDot  set  forth  according  to  their  worth,  fend 
iheiiMrnctionagiven  me  by  the  boose,  yet,  I 
Iti^  their  own  wei^t  will  ao  press  down  into 
yoor  iordabips  c<;n3ciencn  ■ndjadgrneMs,  that 
•irtuwt  farther  aoople,  jwa  wifi  chrerfiilly 
unDtnafE  to  accidnpanj  this  Petition  with  your 
tffit  Dabts  presance. 

A  penaiuM.  The  fint  Mgumenl 
Mtcotnrainded  to  move  your  hjnhhips, 
drmi  from  the  coosideTatiDn  of  the  persona, 
■bidi  lie  petitionan,  the  House  of  Commona  ; 
ihaue,  whose  tevper,  mtldnesa,  and  moderti- 
M  ia  ikia  parliauaM  haifa  been  such,  aa  we 
AmU  he  uuthMkftil  and  in^OM  lo  Aiaiighty 
Ood,  if  we  abooht  oM  achiMwledga  his  gwd 
bad  apoB  m,  o^on  aw  btoguea,  ufon  oar 
kMfUffracwreri.Dodavbt,  by  our  lale  solenM 
«d  ^klic  huniliuiai  and  uamra. 

Tbism 
■a  (ke  im  piMCf  it  nwy  b* 
■hat  paaaion  and- disleaaper  rnmij  aaaMbori  of 
tb  hoote  airived  thitber,  what  boaama,  wbat 
podieti  M  of  cDmptiKtni    ami  lamenuibla 


rewithi 


griflTuieeB  tbe  most  part  bronght  tfailber,  aad 
those  every  day  renewed  by  letter*  and  packets 
from  all  pana  and  quartera  i  you  know  the  oM 
proverb,  '  Uhi  dolor  ibi  digitna,  ubi  amai  ib^. 
'  ocnlos :'  it  is  hard  to  keep  our  fingers  ftwa 
oAcn  handhog  the  parts  ill  affected^  bnt  yet 
our  moderation  overcame  our  passion,  onr  dis* 
creiion  overcuneouraGfection, 

This  moderation  also  will  ibe  better  appear, 
if  iu  cbe  second  placa  it  be  not  (brgollen,  how 
our  ancestors  and  predeceasora  carried  them- 
geh«s  ia  puiliamenlt,  when  opon  lighter  pro- 
vocations, lets  would  not  serva  their  tnrna,  bill 
new  severe  commiasioua  lo  hear  and  determine 
offencea  against  their  liberties,  pithlic  ecdeaiaa^ 
tical  Gtffses,  or  eicoimnonica turns  againat  the 
authors  or  actors  of  such  viulationa,  actrtns' 
ttons,  eon  d  em  nations,  eiecotious,  bniushments. 
But  ufaet  have  wo  said  all  this  pBrliament  i  W« 
only  look  forward,  not  bsckttard ;  we  desiW 
amendment  hereaflar,  no  man's  pnniihnient  fat 
aogiitdone  heretofore;  nothing  written  by  u> 
in  blood,  n»j,  not  one  word  apokeu  against 
any  man's  person  in  (fispletsaie.  llje  Cauda- 
aion  of  our  Petition  ia,  that  we  may  be  better 
intrcnied  in  time  to  com*  i  and  doth  not  this 
motierate  Petition  deserv«  yoitr  lordships  chfar- 
fhl  conjoDctlan,  '  ei  coDgmo  et  condigno?'  If 
a  worm  being  trodden  upon  coald  speak,  ft 
worm  would  any.  Tread  upon  me  no  more,  I  ' 
pray  you  ;  Higher  we  rise  nor,lowor»ecanaot 
descend ;  and  thus  noch  ne  tfaiiik  in  modesty 
may  vrril  be  apokeu  in  our  own  commendaiioil 
thence  to  move  yom"  lordships  to  loocltaafe  m 
your  noble  company  in  ttaia  Petition  without 
sBrcbnpng  it  with  this  Addition. 

4  Itji^ore.  OvT  next  argumentis  drawn  S 
ttmport,  from  the  unaeasonableness  of  the  time. 
liie  Wiseman  asitfa,  ■  There  is  a  time  for  all 
*  things  under  ihtf  sun ;  Tempni  iduir.'  And  i^ 
ill  (he  Wiseman's  Judgmeur,.a  word  spoken  ia 
its  due  time  be  preuous  as  gold  and  silver, 
then  an  unseaaoDable  titne  detracts  as  muck 
from  the  thing  or  word  done  or  tpoken  :  w« 
hold  (under  yoar  favonrs)  that  tbn  time  ia  not 
seasonable  now  for  this  Addition.  It  is  tnir. 
Chat  of  itself,  sovereign'  power  is  ti  thing  al- 
ways so  sacred,  tliat  to  handle  it  otherwise  than 
tenderty,  is  a'kind  of  sacrilege,  and  to  speak  of 
it  otherwise  than  reverently,  is  a  kind  of  blaa- 
phemy.  Bot  every  vulgar  capacity  is  aot  so 
afiectcd ;  the  most  port  of  men,  nay  almost  alt 
men,  judge,  and  esteem  all  things,  not  accord-: 
ing  to  thejr  own  intrinsic  virtue  and  quality, 
bat  according  lo  their  inmiedinte  eSectv  and 
operations,  which  tbe  same  things  have  upon  ^ 
them.  Hence  it  is,  ihat  Itefigion  itself  receiv^ 
•th  more  or  Uas  credit  or  approbation,  as  tbA 
teachers  or  professors  are  worse  or  belter  ( 
■  yea,  if  Ood  himself  send  averywet  harvest  or 
seed-lime,  men  are  apt  enough  lo  censure  di- 
vine power.  The  sovereign  power  hiith  not 
now,  for  the  prneot,  tbe  ancient  amiable  as- 
pect; irt  respect  of  some  late  sad  inBnences: 
but  by  God's  grace  it  wUl  soon  recover. 

To  intermix  with  this   Pctiiion  any  men-   . 
thm  of  Sorereiga  Power,  reiut  tU  ttantibta. 


tlO]  STATE  TRIALS,  SChauuI.  ltm.~Itvctedii^  in  ParHmait Ttbuiiig  to  [390 

trben  angc^  men  sbj,  tovereiga  power  hath 
bean  abuted,  and  the  miHt  niocierate  wisti  it 
bud  not  been  so  used ;  ne  hold  it  not  seasona- 
ble, uuder  jQUr  Jordshipi  correction, 

A  loco.  Our  next  argmneot  is  drawn  i  loco : 
we  think  the  place  ahere  your  lordships  would 
have  this  Addition  inserted,  viz.  in  the  Petition, 
no  convenient  or  seatonuble  pbce.  Yimrlord- 
ahips  nill  easily  believe,  that  thia  Petition  will 
run  tlirough  many  hand*,  every  mun  nilt  be 
desirous  to  tee  and  to  read  what  thrir  knights 
itnd  burgesses  have  done  in  parliiiment  upon 
their  complaints,  what  they  have  brougliChome 
for  their  live  Subsidies :  Jf,  in  perusing  of  this 
PetiliuD,  they  fall  upon  the  tneotian  of  sovc' 
rttga  power,  they  pre^ntly  fall  to  ar^uini;,  and 
reasoning,  and  descanting,  what  sovereign 
power  is,  wb«.l  is  tlie  Utitude,  whence  the  ori- 
ginal, and  ubere  the' bounds  }  mtb  many  such 
curious  and  captious  quetlioDS ;  by  which 
coune,'5arereigu  jioiver  ii  little  advanced  or 
'  advantaged  :  for  1  have  ever  been  of  opinion, 
that  it  is  then  best  with  sovereign  power,  when 
it  is  bad  in  tncit  veneration,  not  whCn  it  is 
proved  by  public  hearings  or  examinations. 

Our  last  Argument  is  drawu  from  our  duty 
•nd  loyalty  to  his  majesty,  in  consideration 
whereof,  we  are  fearful  at  ibis  time  to  take  this 
Addition  into  our  Petition,  IihC  we  should  do 
his  majesty  herein  some  disservice  :  with,  your 
lordships,  we  make  the  L're;it  council  of  the 
king  and  kingdom ;  and  though  your  lordships, 
baving  the  happiiie^  to  be  nt;ar  his  lusjesty, 
know  other  things  better,  yet  certainly  the 
state  and  condition  of  ihe  scverat  parts  for 
wliich  we  serve,  their  dispositioiM  and  inclina- 
liiiii'i,  their  apprehensions,  their  (ears  and  jea- 
lousies, are  tlt^t  known  unio  as.  And  here  1 
Srny  your  lordsliips  to  give  me  leave  to  use  the 
gnre  culled  lUlieenlia,  tliat  is,  tp  insinuate 
and  intimate  more  than  I  mean  l<)  spcuk.  Our 
chief  and  principal  end  in  this  parliament,  is, 
to  make  up  all  rents  and  breaches  between 
the  king  end  tiis  suljecL<,  to  draw  tliem,  and 
,knit  them  t(%etlicr,  from  that  distance,  whereof 
the  world  abroad  takes  too  much  notice,  to 
work  a  perfect  union  and  reconciliation.  How 
improperly  and  unapt  at  this  time  this  Addi- 
tion will  be  in  respect  of  ibis  end,  we  canuot 
but  foresee,  and  therefore  shun  it ;  and  do  re- 
aotte,  that  it  is  neither  agreeable  to  the  per- 
•ons  of  such  counsellors,  of  whom  we  are,  nor 
answerable  to  that  loie  and  duly  which  we 
owe  10  hb  majesty,  to  hoiatd  an  end  of  such 
DDspeokable  cunsequenoe,  upon  the  admit- 
tance of  this  Addition  into  our  Petition,  where- 
of, as  me  hnve  shewed,  ibe  omission  at  thin 
time  can  by  no  means  harm  llie  king's  prero- 
Cativr,  the  expression  may  produce  mani^ld 
inconveniences.  And  theretore,  since  the  ad- 
mittance of  yoar  lordships  Addition  into  our 
Petition  is  Incoherent  .and  incompatible  with 
tlw  body  of  ike  same ;  since  there  is  no  oeces- 
tary  use  of  it  for  the  saving  of  the  kin^s  Pre- 
native;  since  the  moderation  of  our  Petition 
deserreth  your  lordships  chcarful  conjunction 
x^  at;  fince  tbii  Addition  is  unseasonable 


(or  the  time,  and  ioconvenitnt  in  respect  of  (ba 
place  where  your  tordship*  would  have  it  in- 
srcted ;  and  lastly,  may  prove  a  disservice  to 
his  mi^esty  ;  J  conclude  with  a  roust  alTec- 
Cionate  prayer  to  your  lordships,  to  jpin  with 
the  bouse  ot  comniona,  in  preseuliiie  this  Peti- 
tion unto  biv  sacred  majesty,  as  it  is,  without 
this  Addition. 

Monday,  Q6tli  of  May,  the  Lord  Keeper  mado 
this  Speech  nt  B  Conference. 

Gentlemen  i  Ye  that  are  knights,  citizen* 
and  burgesses  of  the  house  of  coiumuus,  I  have 
many  times  this  parliament,  by  command  from 
my  lords,  declared  the  great  zeal  and  affection 
which  my  lards  have  to  maintain  and  nourisli 
the  Kuud  concurrance  and  correspondency 
whicli  liath  hitherto  continued  betweeu  both 
houses,  that  there  might  be  a  happy  issue  in 
this  great  business,. for  the  cotumon  good  of 
ihe  king  and  kiugdoiu.  Now  thM  which  Z 
have  lo  say  this  day  from  my  lords,  is,  to  let 
you  know,  this  fair  proceeding  is  not  a  profes- 
sion of  words  only,  but  really  and  Indenl  con- 
cerning the  Petition,  which  bath  been  long  in 
agitation,  as  the  weight  of  tlie  cause  required. 
Since  the  last  conference,  my  lords  have  taken 
it  into  their  serious  and  Instant  consideration, 
and  at  Ieng;th  ore  fallen  upon  a  resolution, 
Hbich  I  UQ  to  acquaint  you  with. 

Tl«  lords  have  unanimously  agreed  with  ^ou 
in  omnibuM,  and  have^nted,  tliai  tliey  will  join 
ivith  you  in  your  Petition,  with  the  only  alter- 
ation of  the  word  '  maaus '  to  be  put  instead 
oftjieword  'pretext;'  and  for  the  word  'uo- 
'  lawful '.  to  be  put  out,  and  in  place  thereof 
to  add  ■  not  warrantable  by  the  laws  and  sta- 
'  tutes  of  the  realm.'  Which  two  alieratiimt 
yourselves  consented  unto.  So  that  coucctn- 
mg  lliis  business  diere  reniains  nuthiug  dow, 
but  tlist  having  the  Petition  in  ^ur  hands,  ye 
VI  ill,  if  ye  have  not  Glreadv,vo(eitBs  they  have 
done,  and  so  prepare  it  for  bis  majesty ;  and 
my  lords  will  take  order,  that  the  king  be 
moved  for  a  speedy  access  to  present  the  sama 
to  Ills  majesty. 

And,  after  some  pause,  be  said.  There  rests 
one  (bins  whioh  my  lords  have  commanded  me 
to  add.  That  in  re^rd  this  Pitition  touchetb 
upon  certain  charges  raised  by  tlie  lords  tlente- 
nanls,  and  oilier  persoiis,  many  times  fur  good 
uio,  for  ib«  senice  and  safety  of  the  kingdom  ;. 
(hat  ye  take  it  into  your  care  and  considera- 
tion, 011(1  to  provide  a  law  for  assessing  of  suf^ 
chafes,  as  die  occasion  of  the  time  ^liall   re- 

The  Lords  and  Commons  being  thus  happily 
accorded,  the  Petition,  with  the  aAiresaid 
Amendments,  was  read  in  the  bouse  two  seve- 
ral times  togelJier :  then  it  was  voted  upon  tlw 
question,  and  that  it  should  he  ingmssed,  and 
read  the  third  time,  and  the  house  to  sit  in  tbft 
nfti'moon  till  it  was  ioi>rossed,  and  read,  and 
oriien.'d  to  be  presented  to  the  king ;  to  whicb 
thete  was  nut  a  negative  rote. 

Wednesday,  %a  Uay,  tlie  Lord*  and  Cuni- 


«) 


STATE  TRIAIS,  3  Charles  L 

of 


mils  liad  a  Conference  about  the 
delirery  of  ihe  Petilion  ;  and  sir  Ed.  Coke  re- 
portid,  tJiai  ilicir  lordahips  nvrc  agmd,  Tliac 
M  addibofl  or  prefnce  lie  used  to  the  king,  bat 
dat  llie  Petrlioa  be  preferred  lo  his  mtijesty 
Lt  CDmmsnd  of  the  lords  aod  commons  ;  and 
hs  miJMiy  be  de&ired,  that  to  content  his  ffo- 
jU,  he  woold  be  ple.i«cd  to  give  his  gracioui 
Aiuwer  in  tiiil  parliaaieiit. 

Mondaj,  9d  June,  the  King  came  to  the 
FirllameDl,  and  spake  thus  iu  brief  to  both 

GeotktDen  ;  I  am  come  hither  to  perform 
■jdn^;  1  think  no  man  can  think  it  luug, 
MKc  1  have  -not  taken  so  manj  dajs  in  an- 
taering  tlie  Fetltioa,  at  jou  spent  weeks  in 
AanuBg  it :  -and  I  Bin  come  hitherto  shew  jou, 
llal  as  well  in  foniul  [hiogs  dt  in  essential,  1 
lieure  to  give  jou  a»  much  cooteal  u  in  me 

its. 

After  this,  the  Lord  Keeper  spake  as  Ibl- 
Imeifa: 

Mj  lords,  and  jou  the  knights,  citizein,  and 
kiTfeaMi  of  the  Iwuse  of  cotDmans,  bis  majeU; 
bitb  commanded  me  to  laj  onto  you,  tliat  he 
likes  il  in  pM>d  part,  that  in  consideiation  of 
Mtliif  jour  onn  LU^erties,  jrou  hare  generatlj 
TMfessed  in  both  booae)',  that  jon  have  no  in- 
MliaD  to  le*s«n  or  diiDinish  hii  maieitj's  pre- 
nptirci  whereia  a«  yon  have  cleared  your 
iWB  mtentipna,  so  now  hit  majesty  come*  to 
dnr  Ha,  aod  to  subscribe  a  firm  leaKue  with 
'  kit  people,  which  it  ever  likety  to  be  most  con- 
uanl  and  perpetual,  when  the  conditions  arc 
tqoil,  and  known  to  he  soi  these  cannot  bo 
ii  a  more  happj  eUate,  than  when  your  liber- 
lics  shall  be  an  oraameot  and  a  ttrenglh  to  his 
majesty's  Prerogative,  and  hb  Preroealive  a  de- 
feoce  of  your  liberties ;  in  thii  iiia  majesty 
doubts  not,  but  both  he  and  you  shall  take  a 
■olual  comfort  hereafter;  and,  for  bis  part, 
it  a  resolved  to  give  an  etample,  in  the  using 
•f  hii  power  fbi  tha  preservation  of  your  Ij- 
ketties,  that  hereafter  ve  sball  have  no  cause 
tommpLun.  This  is  the  sum  of  that  nbich  I 
w  to  lay  to  you  from  tiis  majesty ;  and  that 
*1iich  farther  remains,  is,  that  you  here  read 
JiiBt  own  Petition,  and  his  majesty's  gracious 

TbE    PeTITIOH    of   RlOHT. 

Ike  PniTiotf  eihibitad  lo  his  majesty  by  the 
lords  spiritual  and  temporal,  and  commons 


To  [he  King's  most  excellent  majeaty. 
I.  "HomUy  >bew  unto  our  sorermgit  lord 
b  king,  (lie  lords  spiritual  and  InnpoTal,  and 

ommans  in  parliament  assembled,  that  where- 
ai  ii  it  declared  and  ^octed  by  a  statate  made 
isthe  tiaie  of  the  re^  of  king  Edward  l,coin- 
BKily  called,  '  Etatutum  de  tollagio  non  cun- 
'  UMndo  *,'  that  no  ullage  or  aid  shall  be  lard 


*  M  Bdw,  1. 


or  levied,  by  the  king  or  his  heirs,  in  this  realm, 
without  the  good  will  and  as&ent  of  the  arch" 
bishops,  bishops,  earls,  bnrnns,  knights,  bur- 
geues,  nod  other  the  freemen  of  the  coninion- 
ally  of  this  realm;  and  bv  flotbonty  of  parlia- 
ment holden  in  the  SSth  year  of  tLe  reign 
orki(]|£d(vard  3*,  it  is  declared  and  enacted, 
Tbut  &om  thenceforth  no  person  shall  be  com- 
pelled to  make  any  Loans  to  tlie  king  ogaiDst 
Ills  will,  because  such  Loaus  were  against  rea- 
son, and  the  franchise  of  the  land;  and  by 
other  flaws  of  this  realm  it  is  provided,  that 
none  should  he  charged  by  any  charge  or  im- 
position, called  a  Benevolence,  nor  by  such  like 
charge;  by  which  the  statutes  before-men- 
tioned, and  other  the  good  laws  and  statute* 
of  this  realm,  your  subjects  have  inhcrilcd  this 
freedom,  thut  they  should  not  Ic  compelled  lo 
contribute  to  anv  tai,  fallage,  aid,  or  other  lite 
charge,  not  set  Dy  common  consent  In  parlia- 

If.  "  Yet  retertheUss,  of  late,  divers  Com- 
miisions,  directed  to  sundry  cotnniissioiiers  in 
several  counties,  with  instructions,  have  issued  ; 
by  means  whereof  your  people  have  been  in 
dire'ra  places  assem'bled,  and  required  to  lend 
certain  sums  of  money  unto,  your  majesty,  Bud 
many  of  them,  upon  their  refusal  so  to  do,  hav* 
had  an  oath  administered  unto  them,  nut  wor- 
rantahte  by  the  laws  or  statutes  of  diis  realm, 
and  hnve  been  constrained  to  become  bound  to 
make  appearance,  anil  give  attendance  before 
your  privy-council,  nod  in  other  places;  and 
others  of  them  have  been  therefiire  impri»oned, 
confined,  and  sundry  other  ways  molested  and 
disquieted.  And  divers  other  charjies  have 
have  been  laid  and  levied  upon  your  people  in 
several  counties,  by  lords  lieutenants,  deputy 
lieutenants,  commissioners  tor  musters,  justice* 
of  peace,  and  others,  by  command  and  direc- 
tion from  your  majesty,  or  your  privy-council, 
against  the  laws  and  free  cuitoms  of  this  realm, 

III.  "  And  whereas  also  by  the  !>tatute  call- 
ed!, 'The  Great  Charter  ot  the  Liherties  of 
'  England,'  it  is  declared  and  enacted,  That 
no  Freeman  may  be  talicn  or  imprisoned  or  be 
disseised  of  his  freehold  or  liberties,  or  hii  free 
customs,  or  be  outlawed  or  euled,  or  in  any 
manner  destroyed,  but  by  the  lawfiil  judgment 
of  hii  peers,  or  by  the  law  of  the  land. 

IV.  "  And  in  the  S8ih  year  of  the  reign  of 
kiag  Edward  S  §,  it  was  declared  and  enacted 
by  authority  of  parliament,  "That  no  mno,  of 
what  estate  or  condition  he  be,  should  be  put 
out  of  his  land  or  tenements,  nor  taken,  nor  uu- 
prisnned,  nor  disherited,  nor  put  to  death,  iviih-  ' 
out  being  brought  to  ansner  by  dne  process  of 

V.  "  Nevertheless,  against  the  tenor  of  the 
said  statutes  II,  and  other  the  good  laws  and 
statutes  of  your  realm,  to  that  end  provided. 


•  SS  Edw.  3,  Rot.  Pari. 

+  1  Edw.  3,  6. 11  R.  a,  9.  1  B.  3,  (. 

t  9  Hen.  3,  29.  &  as  Edw.  3, 3. 

II  ST  Edw.  3,  18.  38  £dw.  S,9.ii  Edvr:  3^ 


ttS]  ffTATBTBlAlS,  3  Cb*UX1  I.  l62i.—P,'octediii§i in Parlimnat  noting  le  [234 


dnen  of  ;o*ir  tutyccti  IwTe  of  late  beas  iio- 
briMced,  vilhout  any  Ckuae  iliewed ;  and  irbea 
~    Lhcir  delivemnce  tliey  were  braiqht  btfott 


rf  ihould  order,' and  tbeir  Lecpen  com- 
JDanded  to  certify  the  ctuisn  of  their  detainer ; 
bo  cause  was  certified,  but  that  thej  were  de- 
tained by  your  mtyesty  i  ipecisl  counuuid,  tig- 
difird  by  the  lords  of  your  privy-council,  aad 
yet  were  returued  back  to  aeveral  pritoot,  witli- 
<nit  being  charged  with  any  thing  to  ivluch  tbey 
might  make  answer  according  to  the  law. 

VI.  "  And  Hhereaiof  lau.great companisi 
of  Soldiers  and  Muiuen  have  been  diapeiMd 
itilo  direfs  countiea  of  the  realm,  and  the  io' 
babitants,  against  their  wills,  have  beeo  coni' 
pdled  to  rec^re  them  into  their  Itouse*,  and 
there  la  sufier  tbem  to  sojourn  Hgaintt  thelans 
and  cuitomi  of  thtg  lealm,  aim  to  the  gient 
grievance  and  vexalion  of  the  people. 

VII.  "  And  wbereas,  alio,  by  aatboritr  of 
parliament,  iu  the  25th  year  of  the  rdga  of  king 
Edw.  8,  it  l9  declared  and  enacted,  That  no 


laws  and  siatuto  of  this  reabu :  and  by  the  laid 
Great  Chuter,  aud  other  the  Uwi  and  statuie* 
of  thil  your  realm,  no  man  oegbt  to  be  adjudg- 
ed to  death,  but  by  the  laws  astabliahed  in  this 
your  realio,  either  by  the  customi  of  the  same 
realm,  or  bj  acU  of  parliament:  u^,  whereat 
'  BO  offender  of  what  kind  aoevet  is  exempted 
from  the  proceeding!!  to  be  used,  and  punish- 
ment! to  be  inflicted  by  the  laws  and  statute) 
of  this  your  realrp  :  nevertheless,  of  late,  dicers 
commission),  under  your  m^esty's  great  seat, 
have  issued  forth,  by  which,  cenain  perwos 
have  been  assigned  and  appoioied  conuius- 
simiers  with  power  and  authority  to  proceed, 
wiibiu  the  land,  according  to  the  justice  of 
martial  Inw,  against  sucb  soldieii  aad  mariners, 
or  other  dissolula  persona  joiniog  with  tbem, 
H  should  commit  any  murder,  robbery,  talon j, 
mutiny,  or  other  outrage  or  tnudeoieaoor  what- 
soever; aud  by  such  summary  couruandoid«ii 
•s  is  HgTeenbiB  to  martial  law,  and  is  used  in 
vmiea  in  dme  of  war,  to  proceed  to  (he  trial 
and  candenmation  of  such  olender*,  and  them 
e  to  be  ezecnled  and  put  to  death,  oc- 


ing  to  the  martial  lai 
VIII.  "  By  pretext  whereof  some  ofyi 
jesty'i  Bubjects  have  been,  by  tome  of  the  said 


commissioners,  put  to  death  ;  when  and  where, 
if  by  the  laws  and  statutes  of  the  land  they  bad 
deserved  death,  by  the  tame  laws  and  statutes 
nlsQ  thev  might  and  by  no  other  ought  to  have 
been  adjudged  and  executed. 

IX.  "  And,  «lio,  nindry  grievous  offenders 
by  colour  thertof,  claiming  an  eienption,  have 
escaped  the  punishment  due  to  them  by  the 
laws  and  statutes  of  this  your  realm,  by  reason 
that  divers  of  your  ofBi^n  and  miaitlen  of 
iostice  have  unjustly  refused,  or'tbrbom  to  pro- 
ceed against  snch  offenders,  according  lu  the 
lame  law*  and  atatntes,  nuon  pretence  that  the 
tftid  ofieaden  wcra  punistwble  ooly  bj  nwti*! 


Uw,  and  by  autLority  of  such  o 
aforesaid ;  which  commission^  and  all  othen  ' 
of  liLe  natura,  are  wlwlly  and  directly  contrary 
to  the  said  laws  and  statutes  of  this  yuur  realm. 

X.  "  They  do  therefore  humbly  pray  your 
nustescellentiaajesty,*  1.  That  no  man  here- 
afttr  be  compeUed  to  make  or  yield  any  gift,  loan, 
benevolence,  tax,  or  sucb  lite  charge,  without 
common  cMueot  by  act  of  pariiament ;  |.  and 
that  none  Ue  called  to  make  answer,  or  take 
sucb  oath,  or  to  ^le  attendance,  or  be  ood- 
fiiied,  or  otherwise  molested  or  diwprieted  oo»- 
ceming  the  same,  or  for  refusal  thereof;  3.  and 
that  no  freeman  in  any  such  iaanaer  as  is  be- 
fore raenti'ined,  be  imprisoDed  or  deteined. 

XI.  "  All  which  ibey  most  humbly  pray  of 
yonr  most  excellent  majesty,  as  their  tight*  and 
liberties,  accoT^ing  to  the  laws  and  Atfntct  of 
this  realm  ;  and  that  yonr  majesty  wootd  atao 
vouchssfi!  to  declare,  that  the  awards,  doifi)^ 
and  proceedings,  to  the  prejudice  of  yonr 
people,  in  any  of  the  premtMes,  shBll  bM  b* 
drawn  herealler  into  con&equeoce  or  exanple : 
and  tbnt  yourmuealy  woaldbealso  graoiooaly 
pleased,  for  the  forther  comfort  and  safety  «" 
your  people,  to  declare  your  royal  will  and 
pleasure,  that  i»  the  thinn  aforesaid,  all  your 
oAcen  and  ministers  shall  terva  yov,  aoeiMil- 
iog  to  the  laws  and  sututM  of  toit  realm,  a« 
tl«y  tender  thn  honour  of  your  mqesty,  aod 
the  prosperity  of  this  kingdom."  [See  Sutaut 
at  iMg^  3, 4  Car.  1.] 

The  EiRff't  Absweb. 

Which  Petition  bemg  read  die  9d  of  juIM, 
the  king*s  Antwer  was  thus  delivered  by  ibe 
lord  keeper : 

"  The  king  willclh  that  right  be  dune  acoird- 
ing  to  the  laws  and  customs  of  the  realm;  iDd 
that  the  statutes  be  put  in  due  execution,  that 
bis  subjects  may  have  no  cause  to  complain  of 
any  wrong  or  oppressions,  contrary  to  their  just 
Rights  and  Liberties :  to  the  preservation  wherfr. 
of,  he  holds  himself  in  conscieuce  as  well 
obliged,  as  of  bis  prerogative.* 

On  Tuesilay,  June  3,  the  king's  Answer  nag 
read  in  (he  House  of  Commons,  and  seemed 
not  fnll  enoDgh,  in  regard  of  so  much  eipenca 
of  time  and  labour,  as  had  been  employed  in 
contrimg  tbe  Petition. 

June  3,  A  Message  was  bfooght  from  tlie 
King  by  the  Speaker, 

"  Tliat  his  majesty  having,  apon  the  Petitioii 
exhibited  by  both  Iwuies,  given  an  Answer  fiiU 
of  justice  and  grace,  for  which  we  and  our  pos- 
terity hare  jnst  cattse  to  bless  his  majaty,  ifim 
now  time  to  grow  to  a  conclusion  of  the  ses- 
sion ;  ajid  tharefiirc  hi*  ^enty  thi^s  fit  to  let 
you  know,  thu  at  be  doth  resolve  to  abide  by 
that  Aiuwei,  without  further  cliaitgi  or  altera- 
tion, so  lie  nill  royally  and  renlly  perform  uoto 
you  what  he  bath  thereby  promised:  and  fur- 
ther, that  he  resolves  to  end  thii  session  upas 
Wedaesdaythellthoftliismuath.  Aodibem- 
foie  wishetb,  that  the  bouse  will  itriously  at> 


*  SftEdw;.!,  6. 


m] 


STATE  TRIALS,  S  Ciiablbs  I.    ]  028 the  Liberty  qfl/ie  Sv^ect. 


(end  those  buiinasea,  Khicli  idbj  best  bring  tb« 
KuiDD  lu  II  bippj  coacltuioQ,  without  eoccr- 
[lining  new  matten  ;  and  «o  )iusbRi]d  tbe  time, 
ttiu  bij  niajiatj  Biaj  witti  the  mare  coiufort 
biing  lU  tpccditj  together  ogftiii :  mt  njiich 
tiiBe,  if  there  be  aiij  further  grievance*  not 
CDoUJned,  or  npressed  in  tbe  Petition^  they 
mty  be  more  tnaturelv  conaideieii  (hiD  tbe 
blue  Hill  no ir  permit." 

Atotber  Message  wa«  brought  Irom  hit  Ma- 
jestj  by  the  Speaker,  Tbunday  5tlt  of  June. 
"  Uu  Diajeity  wished  them  to  remember  the 
Uesnje  he  iut  teat  (hem,  by  which  lie  set  a 
^y  Ibr  the  end  of  tbit  lesaion,  end  he  com' 
Muded  tJie  Speaker  to  let  them  kaow,  that  he 
■ill  ceitaialy  hohl  that  day  prefixed  without  •)- 
ItntioD;  and  becauM  Uuit  cannot  be,  if  the 
bsDse  entertain  more  biuiness  of  length,  he  re- 
fute) them,  that  they  fenter  not  into,  or  pro- 
cted  iriib  any  new  business,  which  may  ipend 
pcater  lime,  nr  which  may  lay  any  scandal  or 
Mperaion  upon  the  ttale-goTernmeat  or  minia- 
Urs  thereof," 

Sir  Jtofrcrt  Pliiiipi,  upon  ibia  occasion,  ei- 
pniMd  liinuclf  thus:  I  perceive,  that  towards 
Gnd,  and  towards  man,  there  is  little  hope, 
sfier  our  liumble  aod  careful  endeavours, 
seeing  out  titis  are  many  aad  so  great :  I  con- 
lidn  my  own  infirmitiei,  and  if  ever  my  pas- 
Kons  were  wrought  upon,  ibu  now  this  met- 
■•geitin  me  up  cspeciRlIy;  when  I  rempiaber 
*ith  what  moderatioD  we  have  proceeded,  1 
cuDOt  but  ivouder  lu  see  the  miserable  straight 
Mare  now  in;  what  have  we  not  done,  to 
bue  merited?  Former  times  bare  given  wounds 


u  of  all  hut  misery 


cmild;  and  what  is  the  re 
ud  desalation  ?  What  i 
htKierred  his  majesty,  and  to  have  done  that 
■bith  would  liave  made  him  greut  and  glori- 
wal  If  this  be  a  fault,  then  we  are  nil  crimi- 
mui.  What  ihall  wc  do,  since  our  humble 
porposes  are  thus  prevented,  which  were  not  to 
n>e  laid  any  aspersinn  on  the  government, 
■ImX  it  tended  to  uo  other  end,  but  lo  give  his 
iMtesly  true  information  of  liis  and  our  dan- 
t"'  And  to  tliis  we  are  enforced  out  of  a  ne- 
tOiiiy  of  duty  to  iLe  king,  nur  country,  and  to 
pouerity ;  hut  we  being  »top^d,  anil  stopped 
1  inch  manner,  ai  we  are  enjoiiied,  so  we  must 
>uw  leave  to  be  a  council,  I  hear  this  with 
ibu  grief,  aa  tlia  saddest  message  ol'  the  great- 
ni  liHt  in  tbe  world.  But  let  us  still  be  wise, 
bcbamhle:  let  us  make  a  fair  declaratiou  to 
tbe  kin;. 

Sir  JoAn  Elliot.  Our  sins  are  so  eiceeding 
peat,  tiiat  uikleas  we  speedily  relnm  lo  Gud, 
Ijod  will  remove  biinself  further  from  us : 
ye  know  witli  what  aOeciion  and  integrity 
,■<  bive  procaedeit  hitherto,  to  have  gained  hii 
tajeii^'s  heut,  and  Out  of  a  twcesiity  ef  our 
■bity,  were  brought  to  tliat  course  no  were  in  i 
t  (ktubi,  a  miircpteientaijon  to  im  majesty 
hub  drawn  tlus  mark  of  his  displeasure  i^d 
o^  Itdtterva  ia  the  Messnge,  umongit  other 
»»i  .particulars,  it  is  conct^iv^(l,   that  iie  were 

you  III. 


■bout  to  lay  some  aspersions  on  tlie  govern- 
ment ;  give  me  leave  to  protest,  that  so  clear 
were  our  intentions,  that  we  desire  only  to  vin- 
dicate liiosr  dishoniiurs  to  our  king  and  coun- 
try, &c.  It  is  Mid  ulao,  as  if  we  cost  some  as- 
EeiVDns  ou  hii  mnjesly's  ministers ;  1  am  cou~ 
dent  DO  minister,  bon  dear  soever,  con — 
Here  the  Speaker  started  up  from  the  seat 
of  the  chnir,  apprehending  sir  John  Elliot  in- 
tended  to  fall  upon  the  Dnke,Bnd  some  of  the 
ministers  of  state ;  and  said,  There  is  a  com- 
mand laid  upon  me,  that  I  must  command  you 
hot  to  proceed, — Whereupon  sir  John  Elliot 

Sir  Ihidley  Diggi.  I  am  as  much  grieved 
as  ever.  Must  we  not  proceed  ?  Let  us  sit  in 
silence,  we  are  miserable,  we  know  not  what 
to  do. 

Hereupon  there  was  a  ^tence  in  the  house 
for  a  while,  which  was  broken  by  sir  Nathaniel 
Rich,  in  these  words : 

air  Naitanul  Rieh.  We  mutt  now  speak 
or  for  ever  hold  am-  peace ;  for  us  to  be  silent 
wb<^  king  and  kingdom  are  in  this  calamity, 
is  not  6t.  The  question  is,  Whether  we  shall 
secure  ourselves  by  silence, yea  or  no?  1  know 
it  is  more  for  our  own  secunty,  but  it  is  not  for 
the  sectirity  of  those  for  whom  we  serve ;  let 
us  think  oii  them:  some  ii 


and  shall  we  now  sit  still  anil  do  nothing, 
and  so  be  scattered  P  Let  us  go  together  to 
the  lords,  and  shew  our  dangers,  that  we  maj 
then  go  to  the  king  logethn. 

Others  said,  that  the  Speech  lately  spokan 
by  sir  John  EUiot  had  given  offence  (aa  tbej 
feared)  to  his  m^esiy. 

Whereuponthe  House  declared, 'That  every 
'  member  of  tlie  bniwr  is  free  from  any  undlk- 
'  tifiil  Speech,  from  tbe  beginning  uf  the  parlio- 

*  meni  to  tliat  day  ;'  and  ordered,  '  I'hai  the 
'  house  be  turned  into  a  Committee  to  consider 
'  what  is  St  to  be  done  tor  tbe  safety  of  the 

*  kingdom  ;  and  that  uo  man  go  out  upon  paia 
'  of  going  to  the  Tower.'  But  befbre  ths 
Speaker  ufl  tbe  chair,  he  dedred  leave  to  go 
forth;  and  the  bouse  ordered  that  he  mav  go 
forth,  if  he  please.  And  the  house  was  fierfr- 
opon  turned  into  a  Grand  Committee :  Mr.  . 
Whitby  in  ihe  chair. 

Mr.  Wande^ard.  I  am  full  of  grief  as  others, 
let  us  recollect  our  English  hearts,  and  not  sit 
still,  but  do  our  duties:  two  ways  are  pro- 
pounded, to  go  lo  tfas  lords,  or  to  the  king;  I 
think  it  is  fit  we  go  to  the  king,  for  (bis  doth 
concern  our  liberties,  and  let  us  not  Tenr  to 
make  a  Remonstrance  of  our  Rights;  we  are 
bis  couiisetlors.  Tliere  are  seme  men  which 
call  evil  good,  and  good  evil,  and  bitter  sweet ; 
justice  is  now  called  popularity  and  (action. 

Sir  Edxarii  Coke:  We  Jiave  dealt  with  that 
duty  and  moderation  that  never  was  the  like, 
rtbiu  lie  itatilibus,  after  such  a  violatiuu  of  lbs 
Liberties  of  the  Subject;  let  us  lake  this  to 
heart.     In  50  Ed.  3,  were  tbry  then  in  doubt 


227]  STATE  TRIALS,  SChaussI.  IG2S, 

ia  pacltammt  to  name  men  thtt  misled  the 
kiiigf  Tliev  Kccused  John  de  Gnnnt,  the  king'* 
son,  anil  lord  Latimer,  and  lord  Nevil,  for  mis- 

fdviiringtlie  king,  Hnd  tbej  went  to  the  Tower 
>r  it ;  now  when  there  is  such  h  downW  of  the 
state,  slinll  we  hold  our  tonnes  }  How  shall 
we  answer  our  dutim  lo  God  Mnd  men?  7  H.  4, 
Fnrl.  Rot.  n.  31,  6c  33,  11  H.  4,  a,  IC,  there 
the  Council  we  compluined  of,  and  are  remoT' 
ed  from  the  kin( ;  they  mewed  up  the  king,  and 
dinuadcd  him  from  [he  comnou  good ;  and 
wh'  ' "        '   " 


:iy  are  wc  now  retired  from  thM  nay  we 
in  f  Whj  maj  we  not  name  those  tliat  are  toe 
cause  ofall  our  evils  i  In  4  H.  3,  &  37  £.  3, 
&  13  R.  3,  the  parliament  moderated  the  king'i 
prerogative;  and  nothing  grows  to  abuse,  hut 
thii  house  hath  power  to  treat  of  it.  What 
Bball  we  do?  Let  us  palliste  no  longer;  if  we 
do,  God  will  not  prosper  us.  I  think  the  duke 
afBuckiRghainis  the  cRQse  ofall  our  miseries; 
and  (ill  the  kio);  be  informed  thereof,  we  tball 
never  eo  out  with  honour,  or  sit  with  houour 
here:  t^at  man  is  the  grievance  of  grievances : 
let  us  set  down  the  causes  of  nil  our  disasters, 
and  nil  will  reflect  upon  him.  As  For  goinj;  to 
the  lords,  that  is  not  via  regia  ;  our  liberties  are 
now  impeached,  we  are  concerned;  it  is  not 
viit  r^^i",  the  lords  are  not  participant  with  our 
tibcrtirs. 

Mr.  Sclden  advised.  That  a  Declarotion  be 
drawn  uuder  four  heads :  1.  To  express  the 
house'ii  dutifiil  carriage  towards  bis  majtsty.  3. 
To  tender  their  Liberties  that  are  lioiated.  S. 
To  present  what  the  purpose  of  the  house  was 
to  have  dealt  in.  4.  That  that  great  peisnn, 
vji.  the  Duke,  fearing  himself  to  be  questioned, 
,<tid  interpose  and  cause  (his  distracdon.  All 
this  time,  (said  he)  we  have  cast  a  mantle  on 
what  WHS  done  lost  parliament;  but  now  being 
driven  again  to  h>nk  on  tlint  man,  let  us  pro- 
ceed, wiih  (hat  which  was  then  well  begun,  and 
let  die  charge  be  renewed  that  was  Init  parlia- 
ment agmngt  hiin,  to  which  he  made  an  answer, 
but  the  particulars  were  sufficient,  that  we 
Blight  demand  judgmiot  on  that  answet  only. 

In  conclusion,  tliQ  bonte  agreed  upon  several 
Heads  for  a  Remonjtmoce.  fiut  the  Spenker, 
who  after  be  had  lenve  to  go  forth,  wentpri. 
t  thi*  Messi^e! 
J  communds  for  the  pre- 
t  tliey  adjourn  the  house  till  [o-morrow 
rnornin^  and  that  all  ccoiniittees  cease  in  the 
JDCan  tunc." — And  the  bouse  was  accordinglj' 
adjourned. 

At  the  same  Ume  the  king  sent  for  the  Lord- 
Keeper  to  attend  iiim  presently;  the  bouse  of 
lords  was  adjourned  ud  libitum.  The  Lord- 
Keeper  being  returned,  and  the  house  resumed, 
his  kmlfihip  si^niGed  his  majesty's  desire,  ihat 
the  house  and  all  committees  b«  adjouraed  till 
to-morrow  morning, 

i'riday,  6th  of  June,  Mr,  Speaker  brought 
another  Message  from  the  King,  and  said  : — 
la  my  ternce  to  this  liouse  I  have  had  many 
undeserved  favours  front  yoD,  whidi  I  shall 
en!r  with   all  humbleness    acknowledge,  but 


— PncKdmsi  in  ParliaiHaa  rebuiKg  to  [39S 

none  can  be  greater  thai)  that  cetthnony  of 
your  ronlidence  yesterday  shewed  nnto  me, 
whereby  I  hope  I  have  dane  nothing,  or  mada 
any  representation  to  his  majesty,  b.ut  what  i$ 
Ibr  the  honour  and  service  of  this  house;  and  t 
will  have  my  tongue  cleave  to  my  moutb,  b^ 
fnre  I  will  speak  to  tbe  disadvantage  of  any 
tnemher  thereof:  I  have  now  a  Message  to  de- 

Whereiis  his  majesty  understanding,  that 
you  did  conceive  his  last  Message  to  restrvn 
you  in  your  jnst  privileges,  these  are  to  declare 
his  intentions,  That  he  had  no  meaning  of  h»r- 
ring  yon  from  what  hath  been  your  nght,  hut 
oni^  to  avoid  all  scandals  on  his  council  end 
actions  past,  and  that  his  ministen  might  not 
be,  nor  himself,  under  ibeir  names,  tuied  for 
their  counsel  unto  his  innjeity,  and  that  no  such 
particulars  should  be  taken  in  band,  as  would 
ask  a  lunger  time  of  consideration  than  what 
he  bath  already  prefixed,  and  still  resolves  t* 
hold ;  that  lo,  for  (his  time,  Christendom  might 
take  notice  of  a  sweet  parting  between  him  and 
his  people.:  which  if  it  fall  out,  his  mnjeity  will 
Dot  be  long  from  another  meetiog,  wbcu  such 
grievances,  if  there  be  any,  at  their  leisure  and 
convenience  may  be  considered." 

Mr.  Speatcr  pnieeerled ; 
I  will  observe  somewhat  oot  of  this  Message; 
ye  may  observe  a  great  inclination  in  his  ma- 
jesty to  meet  in  (his  hous*.  1  was  bold  yes- 
terday to  take  notice  of  that  liberty  ye  gan 
me  to  go  to  his  mnjesty  ;  I  know  there  are 
none  here  but  did  imagine  whither  I  went, 
and  hut  that  I  knew  you  were  desirous  and 
content  (hat  I  should  I'eMve  you,  I  would  not 
hm-e  desired  it:  give  me  leave  to  say.  This 
Message  bars  you  not  of  your  right  in  mat- 
ter, nay,  not  in  mumer;  but  it  rcacheth  to 
his  eounseli  past,  end  fur  giving  him  couiisel 
in  those  things  whicti  he  commanded. 
The  House  of  Lords  likewise  received  this  Met- 
sage  hy  tlie  Lord-Keeper, 
"  My  Lords,  his  majesty  takes  nntica,  tu  your 
great  advantage,  of  the  proceedings  of  thir 
h[>use  upon  the  hearing  ot  his  majesty's  Mes- 
sage yesterday;  he  accounts  it  a  tiiir  respect^ 
that  yc  would  neitlier  agree  on  any  committee, 
or  send  any  Message  to  bis  maJMiv,  thoi^h  it 
were  in  your  own  hearts,  but  yield  yonrseUci 
to  Ills  majesty's  Messiige,  and  de^  your  owu 
resolutioiis  till  you  meet  f^in  at  tbe  lime  ap- 
pointed by  his  majesty.  Yei  his  majesty  takes 
It  in  extreme  good  part  to  hear  what  was  in 
your  lieart,  and  especially  that  you  were  so  sen- 
sible of  the  inconvenience  (bat  might  eosna 
upon  thehreaeb  of  this  parliament :  which  if  it 
had  happened  or  shall  hereafter  happen,  his 
majesty  asiures  himself,  that' he  shall  stand 
clear  ijefore  God  and  men  of  the  occasion. — 
But  his  majesty  saith.  Ye  bad  just  cause  to  b« 
sensible  of  tbe  danger  of  comiderbg  how  dio 
state  of  Christendom  now  stands  in  respect  of 
■he  multitude  and  streugih  of  oCir  enemies,  and 
weskness  on  our  port.  All  which  hia  majesty- 
knows  very  exactly,  and  in  tcspoct  thereof 


S9] 


STATE  TRIALS,  3  Charlu  I.  1628.— the  Liberty  t^ike  SiAject.  [330 

ipoQ  him,  but  out  of  a  at- 


oRcd  thii  p«rliameqt;  the  particiikn  his  mm- 
jcttj  boUi  it  oeedlew  to  recite,  e»p«ciatl]r  lo 
joui  lonl&hipt,  since  chej  are  appareot  lo  all 
wan  neiiW  will  it  be  DeedlUl  Co  rtiteratu 
tlKDi  to  hii  DMJesij,  whose  cares  are  laoii  at- 
UBtiie  apon  ibem,  and  the  beit  rernedj  ihat 
OB  bf  Ibooghc  on  therein,  i*,  if  bis  Bubjects  do 
ikir  paiti.  Therefore  bii  nMJest^  ^vea  ;ou 
innj  thaoki,  and  bid  me  tell  viiu,  ihat  Dothing 
luthbeeD  niare  acceptable  to  bim  aU  (he  time 
of  tbit  paHiameot,  tnmn  thia  dutiful  and  dii- 
atct  cairiige  of  ifoar  lordahipi,  which  be  pro- 
lauah  haih  been  a  cMeTinotiTe  to  bis  mnjestj, 
'"■"'"'  )  thai  were  not  fur 


Sir  Saierl  Phii^  aBsumed  the  debate,  upon 
lie  Jdcaage  delivered  b;  che  Speuler,  and 
aid  i  I  rite  141  with  a  disposition,  somewhat  in 
Doic  bopc  of  comfort  tliun  jresterda; ;  jet,  iu 
npid  of  tiie  uncertain^  of  conoseti,  I  iltall 
Kcbaoge  much.  In  tbo  first  place,  I  must 
it  bold  mibout  flatten ag,  a  thiug  oot  incident 
10  Die,  to  tell  you  Ktr.  Spealicr,  jou  have  ant 
mIj  St  all  time*  diichargad  the  duty  of  agnod 
SpEak«r,  but  of  a  guod  man  ;  for  nblch  I  ren- 
iajaa  monj  thanks. — Another Tcspcct touch' 
0%  lus  majeslj's  Aofwer  to  our  Petiiion ;  first, 
if  tlwt  answer  fall  out  to  be  shart,  1  Iree  his 
anjeuT,  and  I  believe  hit  resolution  was  to  give 
lut  wMch  we  all  eiipccted :  bat  in  that,  as  in 
■dttn,  we  have  suflered,  bj  reaioa  of  inter- 
NKd  peraoua  between  his  majestj|  and  ui. 
But  this  daj  is  bj  intervenient  accidents  di- 
nned iixnn  that,  but  so,  as  in  time  we  go  to 
Usawjestj;  therefore  let  as  remove  those  jea- 
Iwaies  in  hit  luajeetj  of  our  proceeding,  that 
tiume  men  ovei^rown  have  been  mrerepre- 
med.  We  have  proceeded  with  temper,  io 
onideiKa  of  hismajettv'i  goodness  to  uB,aBd 
nr  fidelity  lo  him  i  and  if  anj  havecoostrued, 
ihu  what  we  have  done  hath  been  out  of  fenr, 
Ittbin  toow  we  came  hither  freemea,  and  will 
'  ever  teulve  to  endure  the  worst ;  and  they  are 
feor  meo  that  make  tuch  iaterpreiations  of 
ptriiainent*.  In  this  way  aod  method  we  pn>- 
tttded,  and  if  any  thing.  GUI  out  unhappily,  it 
a  Dot  kioE  Charles  that  advised  lumscir,  hut 
^  Charles  misadviied  by  others,  and  misled 
bf  misordered  counsel ;  it  becontesus  tu  cod- 
uff  what  we  were  doing,  and  now  to  advise 
^t  is  fit  to  be  dune.  We  were  tnldogcon- 
HderalioD  of  the  itate  of  the  kingdom,  and  to 
Enaent  to  bis  majesty  the  danger  be  and  we 
ucii,  if^ince  any  man  batb  been  named  iu 
FaniaiUr,  ^though  I  lore  to  apeak  of  mv  bet- 
ten  Kith  humility)  let  him  thank  himself  and 
b  counsels,  but  tboee  necestaiy  jealousies  give 
■  occanon  to  name  him;  I  assure  mywlfwe 
■Ul  proceed  with  temper,  and  give  his  majestv 
wkfsctioo,  if  ne  proceed  in  that  way.  Hit 
*^nty's  message  is  now  explanatory  in  point 
of  our  libertiet,  that  he  intends  not  to  bar  ut  of 
Hr  tigba,  and  that  be  would  miC  have  any  aft~ 
|(nioi) out  on  the  counsels  past;  let  us  pre- 
mt  to  hit  majesty  tliortly  and  ^thfuUy,  and 
mu*  ourinientiODs,  that  we  intend  not  ' 


turrouoded  with,  and  to  present  lo  him  the  af- 
fairs at  home  and  abroad,  and  ti>  desire  bis  ma- 
jeiity,  that  no  interposition  or  misinformation 
"men  in  fault  may  prevail,  hut  to  expect  the 
luc  that  shall  be  fuA  of  duty  and  loyUty. 
The  Commous  sent  a  Mewage  to  the  Lords, 
that  tbey  would  join  in  an  bumble  request  lo 
the  king,  that  a  clear  and  satisfactory  Answer 
be  given  by  his  majesty  in  full  parliament  Co  the  . 
"  'ition  of  Hight;    whereuuto   the  lords  did 

Jnne  T,  the  King  came  to  the  Lords  House, 
and  the  house  of  commons  nereaeot  for.  And 
the  Lord~Keeper  presented  the  humble  Pelittoa 
of  both  heusee,  and  said, 

"  May  it  please  your  most  excellent  majesty, 
the  lords  spiritual  and  temporal,  and  common*  ■ 
in  parliament  assembled,  taking  inloconsident- 
tion  that  the  good  intelligence  between  your 
majesty  and  your  people  dolb  much  deiiend 
upon  your  majesty's  Answer  uoto  their  Petitioa 
of  Right  .formerly  presented;  nlth  unanimous 
[nt  do  now  become  most  humble  suitora 
your  moJMty,  that  you  would  be  grnci- 
ouily  pleasid  to  give  a  clear  and  satisSictory 
Answer  thereunto  in  full  parliaineni." 
Wbtreimta  the  King  replied. 
The  Aniwer  I  have  already  given  you  was 
made  with  to  good  deliberation,  and  approved 
by  the  judnnents  of  >o  many  wise  men,  that  I 
could  not  nave  imagined  but  it  should  have 
given  you  fiill  salistactioo;  but  to  avoid  all  (un- 
biguous  interpretations,  and  to  shew  you  that 
tbere  is  no  doubleness  in  my  meaning,  I  am 
willing  to  pleas*  you  as  well  in  words  as  in  sub- 
stance ;  read  your  Petition,  and  you  shall  havtt 
an  Aoiwer  that  I  am  sure  will  pleate  you." 

The  Petition  was  read,  and  this  Answer  wu 
returaed  : 

Soil  droit  fait  eome  il  at  dairiperUPttitioH. 
C.H. 

"Thitlai 
notnoretbai     _  ,  , 

for  the  meaniu|  of  that  WM  to  confirm  all  yotir 
Liberties,  knowmg,  according  to  your  own  prft< 
testationt,  that  you  neitber  mean  nor  can  buit 
myPrerocative.  And  lasture  yon,  my  maxim 
ia,  that  uie  people's  Liberties  strengthen  tlw 
kiac's  Prerogative,  and  the  king's  Prerogaove  if 
to  defend  the  people's  Liberties.  You  tee  how 
ready  I  have  shewed  myself  to  satisfy  your  <te- 
mandi,  so  that  I  have  done  my  part;  where- 
fore,if  this  pariiament  have  nota  happy  coll- 
duuou,  the  sin  it  yours,  I  am  free  from  it." 

Whereupon  the  Commons  returned  to  their 
own  house  with  unspeakable  joy,  and  resolved 
10  to  proceed  as  tu  ei press  their  thankfulnesa. 

t7 


The  King's  Message  to  the  Lower  Hoose 

sir  Humfrey  May,  10th  of  June  16^. 

His  majesty  is  welt  pleased  tliat  your  Peti' 

tion  of  lUght,  and  bis  Answer,  be  not  only  re- 


331]      STATE  TRIALS,  3  Cbahles  I.  i6W.—Prwxedmgi  in Parlia»mt,  Ifc.      ['iSS 


carded  in  both  houwa  ofparliuneut,  but  also  in 
■11  the  courts  of  Wettnunuer;  and  rhat  hii 
pleasure  is,  it  be  put  in  print  for  his  honour, 
and  the  content  aud  the  aatisfaction  of  his  p«o- 

Ele,  and  that  you  proceed  cbeerfulljr  to  settle 
usineises  fiir  the  ^ood  and  reforniBiioii  uf  the 
comuiniiweattli. 

June  26.  The  Speaker  being  sent  for  to  the 
king  at  Whitehall,  came  not  into  the  house  till 
about  nine  o'clock.  And  after  praj'ers,  the  Rc- 
monstrance  concerning  Tuiinage and  Poundage 
being  iiigrossed,  wa.!  a  reading  in  the  house; 
and  while  it  was  a  reading,  ihe  king  sent  for  the 
Speaker  and  (lie  ivhole  house,  and  the  kiog 
made  a  Speech  as  followetfa : 

"  It  may  seem  strange,  that  I  canle  so  sud- 
denly to  end   this  session  ;  before  I  give  mj 
assent  (o  the  bills.     I   will  tell  Jou  the  cause, 
'though  I  must  avow,  that  I  owe  the  xccount  of 
mj  actions  tq  God  atone.     It  is  known  toever^ 
one,  that  a  while  ago  the  hoiis«  of  commons 
gave  me  a  lUinotistruacej   how   ncceptnhk, 
every  man    may  judge  ;    and   for   the  merit 
of  it,  I  will  not  call  that  in  quesllon,  for  I  am 
Bure  no  wi^e  niiin  Cin  justify  il. — Now,  since  I 
am  truly  informed  that  a  second  Remonstrance 
is  preparing  for  me  to  take  awnj  the  profit  of 
my  Tuniiage  attd  Poundage,  one  of  the  chief 
maintenances  of  tn;  crown,  by  alledging  I  have 
given  awa;r  '"J  "jcht  thereto  b^  my  Answer  to 
your  Petition  : — This  is  so  prejudicial  unto  me, 
that  I  am  forced  to  end  this  session  some  few 
hours  before  I  meant,  being  not  wiliine  to  re- 
ceive  any  more  Reragnstranceg,  to   which   I 
must  give  n  hirsb  Answer.   -Anil  since  I  see, 
that  even  the  house  of  commons  begins  already 
to  make  false  constructions  of  what  I  granted 
in  your  Petition,  lest  it  be  worse  interpreted  in 
tlie  couutry',  I  will   now   make  a  Declaration 
cooceming  the  true  intent  thereof: — The  pro- 
ttssion  of  both  houses  in  the  time  of  hammering 
this  Pecilion,  was  no  way  to  trench  upon  mj 
Prerogative,  saying,  they  had  neither  intention 
or  power  to  liurt  it.     Therefore  it  must  needs 
be  conceived,  that  I  have  granted 
only   confirmed  the  antient  Liberties   of  my 
Suhjecti.     Yet  to  shew  the  clearness  of  my  ' 
tentiuni,  4hat  I   neither  repent  nor  neiiD 
recede  fraai  any  ibing  I  have  promised  you,  I 
do  here  declare  myself.  That  those  things  which 
have  bceo  done,  whereby  many  have  hnd  si 
cause  to  sulmect  tbe  Liberties  of  the  Subji 
to  be  trenched  upon,  which  indeed   was  the 
first  and  true  ground  of  the  Petition,  ehall  not 
hereafter  be  dr^wn  into  «XMnple  lor  your 
judice  ;  and  from  time  to  dme,  in  tba  ' 
a  king,  ye  shall  not  have  the  like  cause  to 
plain.     But  as  for  Tunnage  and  Pound agt 
■  thing  I  cannot  want,  and  was  never  intended 
by  you  to  aik,  nor  meatit  by  me,  I  am 
grant. — To  conclude,  1  command  you  all  that 
are  bere  to  take  notice  of  what  I  luve  ^oki 
at  this  time,  lo  be  the  true  intent  and  meaning 
of  what  I  gnmlwl  you  in  your  Petitii 
especially  you,  my  lords  the  Jndges,  fai 
nnlyt  under  me,  oelonp  tbe  iatflrpretatiou'  of 


ir  pre- 
ord  of 


lows  :  for  none  of  tbe  hrfuses  of  pariiamCDt, 
either  joint  or  separalb,  (what  new  doctrine 
soever  amy  be  raised)  have  any  power  either  to 
make  or  declare  a  lawwtthout  my  consent." 

Then  the  Lord  Keeper  said.  It  is  his  ma- 
jesty's pleasure  that  this  se^ision  now  end,  and 
that  the  purlininent  be  prorogued  till  the  SOttt 
fOctobernext. 
In  the  following  sessions,  vif.  Wednesday, 
anuary  Slst,  it  was  ordered  that  Mr.  Selden 
lid  others  should  see  if  the  Petitibn  of  Right 
nd  his  maiestt's  Answer  tltereunto  were  in* 
rolled  in  the  Parliament  Rolls,  and  the  Courts 
Westminster,  as  his  majesty  sent  them  wont 
the  last  tetsion  they  should  be ;  and  ulso  in 
what  manner  they  were  entered  ;  which  was 
done  accordingly,  and  Mr.  Selden  maile  report 
to  the  house,  that  his  majesty's  Speech  made 
the  last  day  of  the  wssion  ili  the  upper  house  is 
also  enter«J  by  bis  majeitv's  command  .^-Here- 
upon Mr.  Pym  moved,  tfiflt  the  debate  hereof 
should  he  deferred  til)  Tuesday  next,  by  reason 
of  the  fewness  of  the  bouse. 

Sir  John  Elliot.  This  whicb'  is  now  men- 
tioned, concerns  the  honour  of  the  house,  and 
the  liberty  of  the  kbgdom ;  it  is  true,  it  de- 
serves to  be  deferred  till  there  be  a  full  house, 
but  it  is  good  to  prepare  things.  I  find  it  is  a 
great  point ;  I  desire  a  select  Committee  may 
enter  into  consideration  therenf,  and  also  how 
other  Liberties  of  the  kingdom  be  intaded.  I 
find  in  tbecountry  the  Petition  uf  Right  printed 
indeed,  but  with  an  Answer  that  never  gave 
any  satigraction  ;  I  desire  a  committee  may 
consider  thereof,  and  present  it  to  the  bonsr, 
and  that  the  printer  be  sent  for  to  give  satis- 
fiietion  to  the  house,  by  what  warrant  it  was 
printed.     Which  was  ordered. 

m^.Seldtn.  For  this  Petition  of  Right,  it  ia 
known  how  lately  it  hath  been  violated  since  onr 
last  meeting ;  the  Liberties  for  life,  person  and 
freehold,  how  they  haie  been  in  vailed  ;  and 
have  not  some  been  committed,  contrary  to 
that  F  Now  we,  knowing  these  invasions,  must 
takenoticeofit.  For  Liberties,  forState,  wo 
know  of  an  order  made  in  the  Bzcheqner,  that 
a  sheriff  was  commanded  not  to  execute  a  re- 
plevin, and  men's  goods  are  taken  and  must  not 
be  restored.  Whereas  no  man  ought  Co  lose 
life,  or  limb,  but  by  law  ;  hath  not  one  lately 
lost  his  ear*  (meaning  Savage)  that  was  cen- 
sured in  the  Star-Chamber  by  an  arbitrary 
sentenceand  judgment.'  Next,  they  will  take 
away  our  arms,  and  then  our  lives.  Let  all  see 
we  are 'sensible  of  these  customs  creeping  npon 
US:  let  us  make  a  just  presentation  bereoito 
his  majesty. 

Norton  the  King's  Printer  was  brought  totbe 
bar,  and  asked  by  what  warrant  the  Additions 
to  the  Petition  were  printed  f  He  antwerw), 
chat  there  was  a  warrant  (as  he  thought)  from 
the  king  himself.  Atid  being  asked  whether 
there  were  not  some  copies  pnnted  without  nd- 
diticiiu,  he  answered,  there  were  seme,  but  ibej 
were  lupprewed  by  wsmvl. 


23S]  £TATE  TRIAI^,  4  Chables  I.  \6Q9.-~C(ue  of  Walter  Long,  aq. 


[3M 


Sir  John  Elliot  d«ir^  lome  clenrer  satis- 
ficiioD  might  be  madr,  Bod  that  he  mi^t  an' 
jirer  flirectlj  by  wtmt  warrant, — ifrliereupon 
be  was  called  in  agBin  :  who  snid,  he  did  not 
Nmember  the  particular,  but  sure  tie  wat  there 


Hr.  SeUtn  reported  from  the  Cammittee 
cntcemiDEthepriiiiingufthe  Petition  of  Sight, 
that  there  were  printed  1500  withoat  an;  Ad- 
ditinD  at  all,  whicli  were  published  in  the  time 
of  the  last  parliament ;  but  dnce   the  parlia- 


ment, other  copies  haTc  been  printed,  and 
these  lupprot  and  made  waste  paper;  which 
the  Printer  did,  as  he  said,  bv  cnmniand  tram 
Mr.  Attorney,  which  he  received  from  bii  ma- 
jesty. And  the  Printer  fiirther  said,  That  the 
Attorney  was  with  the  Lord  Pri»j-Seal  at 
Whiteliall,  and  there  delivered  unto  the  Printer 
sundry  papers,  with  diven  bands  to  them,  and 
on  the  backside  was  endorsed  thus,  '  We  will 
'  and  command  you,  that  these  Copies  ba 
'  primed.' 

Which  pat  an  end  to  this  Grand  Afikir. 


128.  Case  of  Walter  Long,  esq.  Sheriff  of  Wilts,  and  one  of  the 
Burgesses  for  Bath,  for  abseoting.  himself  from  his  Bailiwick 
to  attend  his  duty  in  Parliament:  4Chart.es  I.  a.d.  1639. 
[I  Rushworth,  684.    2  Cobb.  Pari.  Hist.  518.J 

In  Hilary  Term,  1629,  the  Case  of  Waller 
LoD^  esq.  one  of  the  imprisoned  Genileaten, 
came  to  hearing  in  the  Star-Chambcr,  which 
IS  u  follow  eth 


Aa  Information  was  exhibited  into  the  Star- 
Cbamber,  by  sir  Robert  Heath,  knight,  his  ma- 
jesty's Attorney- General,  plaintiff,  against  the 
said  Walter  Long,  defendant,  for  a  great  and 
prtsumptuous  Contempt  against  his  majesty, 
ibr  breach  of  duly  and  trust  of  his  office,  and 
Cot  manifest  and  wilful  breach  of  his  oath 
taken  as  Hi^  Sheriff  of  the  county  of  Wilts, 
and  not  reiiding  and  d»eUing  in  his  awn  per- 
ioD  in  the  said  county,  accurdinE  to  the  said 
oath ;  bat  bong  chosen  one  of  the  citizens  for 
the  city  of  Bath,  in  the  county  of  Someiset,  to 
serve  lor  the  ssid  cily  in  the  [nst  pnrliameot,  by 
colour  thereof  he  remained  at  London  or  West- 
minster, during  the  lime  of  that  parliament  by 
the  space  of  three  months  and  above,  in  neg- 
lect of  hb  duty,  and  in  manifest  contempt  of 
the  laws  of  this  kingdom :  which  cause  was 
now,  by  his  majesty's  said  Attorney-Gcoeral, 
bronght  to  bearing  upon  the  defendani's  own 
oonfeuioa. 

And  upon  opening  the  Answer,  and  reading 
the  Eaaminatioii  of  the  said  defendant,  it  ap- 
peared to  this  Court,  '  That  the  latd  defend- 
'  ant  Long  warn  by  his  now  minesty  made  High 
'  Sheriff  of  the  county  of  Wilts  in  or  about 
'  November,  in  the  third  year  of  his  majesty' 
'  reign,  and  received  his  patent  of  sheriffwick 
'  fiw  the  said  county  about  ten  days'  afler  ;  and 
*  that  be  look  an  ouh  before  one  of  the  masters 
'  of  ibe  Chancery,  for  the  due  execution  of  the 
'  said  office  of  Sheriff  of  the  said  cou 
.  which   oath,  as  appeared  by  the  same  there 
r«sd  in  court,  he  did  swear.  That  he  would 
his  own  person  remain  within  his  Bailiffwick 
during  all  the  time  of  bis  Sheriffwick,  unles 
had  the  king's  license  to  tbe  con^ary  ; 
that  at  an  election  of  citizGDB  for  iJie  said 
ofBath,  tbe  said  defendant  Long  was  chosen 
•neof  thecitizeni  to  serve  for  the  said  cily  of 
Bath  in  the  parliament  then  summoned,  to  be 
lioklen  ai>d  Gommenc*  upon  tbe  ITth  day  of 


March  in  the  said  3d  year  of  liis  majettv'* 
reign  ;  and  being  so  chosen,  and  retarned  by 
the  Sheriff  of  the  coifnty  of  Somerset,  notwitb- 
slanding  bis  said  oalh  taken  tu  remain  in  his 
proper  person,  within  his  bailiffwick,  unless  he 
were  licensed  by  bis  majesty,  he  the  said  de- 
fendant did  make  his  personal  appearance  in 
the  commons  house  of  parliament,  at  the  city 
of  Westminster,  in  the  county  of  Middlesex, 
and  did,  during  the  most  part  of  the  said  par- 
liameni,  continue  in  and  about  the  city  of  Lon-  ' 
don  and  Westminster,  and  did  attend  in  the 
larliament  aa  a.  citizen  for  the  said  city  of 
)atb :  during  all  which  time  be  likewise  was 


Ids  miijesly  to  tlie  contrnry.  Upon  considers- 
whereof,  as  also  of  the  particular  causes 
reasons  of  the  defendant's  demurrer  and 
plea  formerly  exhibited  unto  tbe  said  Informa- 
I,  the  benefit  whereof  was  by  order  of  the 
rt  reserved  unto  the  defendant  to  be  debat- 
ed and  considered  of  at  the  hearing  of  this 
i,  and  of  divers  other  matters  now  urged 
for  ihe  defendant,  both  to  have  justifir^d  his  the 
said  defendant's  attendance  in  parliament,  and 
his  not  residence  in  person  in  the  county 
whereof  he  was  then  Sheriff;  and  amongst 
other  things,  that  it  properly  belonged  to  the 
house  of  parliament  to  judge  of  Che  justness  or 
unjustnets  of  the  said  election  ;  and  upon 
grave  and  mature  consideration  thereof,  bad 
and  taken  by  tiie  court,  their  lordships  did  not 
only  conceive  the  said  demurrer  and  plea,  and 
other  the  arguments  and  reasons  U9ed*by  the 
defendant  and  bis  counsel  to  be  of  no  weight  or 
sireiigth,  but  also  to  be  in  opposition  and  dero- 
galion  of  the  juiisdiclion  of  the  court ;  llie  rea- 
sons moved  and  urged  fur  the  defendant's  ex- 
cuse ur  justification  being  clearly  answered, 
and  the  charges  of  the  Information  made  goud 
by  Mr.  Attorney -General,  nnd  others  of  his 
majesty's counserieamtd.  And  therefore  the 
nhole  (uurt  were  clear  of  opinion,  and  did  so 
declare,  '  That  the  said  defendant,  who  at  that 
'  time,  ta  High  Shenff,  had  tbe'  custody  and 


S35]  STATE  TRIALS,  5  Chablu  I.  1 029-~Proaediiigt  egamit  Wm.  Stnud.  aq.  [236 

'  charge  of  tlic  countyof  Wilts  commiited  unto 
■  him  bj  his  mojeBt]',  aod  hnd  taken  his  oath 

*  Bccording  to  the  law  to  abide  m  his  proper 
'  pertou  within  his  bailiHWick  during   nil  the 

*  time  of  hia  sheriSVick  as  aforesaid,  and  whose 
'  [nut and  employmentdidre^fuir*  his  personal 

*  attendance  in  the  said  couat;,  had  not  onlj 
'  committed   a  great  offence  in   violating  the 

*  said  oatb  so  by  him  taken,  but  also  «  ^mt 
<  misdemeanor  in  breach  of  tlie  trust  committed 
'  unto  hitn  bj  his  majesty,  and  in  contempt  of 
'  hia  mnjeHy'B  pleasure  signi&cd  unio  him  by 
'  and  under  his  higbaess'a  great  senl,  when  he 
'  granted  unto  biiB  tlie  said  office  of  sheriSWick 

*  aforesatd.' 

For  which  said  serend,  great  oflences  in 
breach  of  his  said  oath,  neglect  of  the  trust 
and  duty  of  hit  office,  and   the  great  and  high 


contempt  of  hi*  niiueiiy,  their  lordships  did 
bold  the  same  defendant  wortby  the  sentence 
of  the  court;  the  rather,  to  the  end  that  by 
this  example  the  sheriffs  of  all  other  counties 
may  be  deterred  from  committing  the  like  <jf- 
fences  hereafter,  end  may  take  notice,  that 
their  personal  residence  and  attendance  is  re- 
quired within  their  bailifiwicks  during  the  tiOM 
of  their  sheriffwick.  The  court  tberefore 
thought  fit,  ordered,  adjudged,  and  decreed. 
That  the  said  Defendant  should  stand  and  be 
committed  to  the  Prison  of  ibe  Tower,  there 
to  remain  during  liis  majesty's  pleasure,  ^d 
alsotopa;Afineof9,000 marks  to  hismajeaty's 
use  ;  and  Furtiiar,  make  his  humble  submiuion 
and  acknowledgment  of  his  oSence  both  in  the 
court  of  Star-Chambcr,  and  to  his  majesty,  be- 
fore  his  tbcnce  enlargement. 


129.  Procieedings  agjunst  William  Stroud,  esq.  Walteb  Long, 
esq  John  Selden,  esq.  and  others,  od  an  Habeas  Corpus, 
in  Banco  Regis:  5  Charles  I.  a. d.  i629.* 

On   Febniary  gSrd,  the  house  of  c 
being  upon  the  debate  of  the  business  of  the 
Cusiomen,  who  hsd  seised  Goods, belonging  to 
r.  Rolls,  a  member  of  the  hnuse,  dissolved 


themselves  into  a  em: 
resolved,  "  That  Mr.  Rolls,  a  loetiiber  of  the 
house,  ought  to  have  privilege  of  person  and 
goods;  but  the  command  of  the  king  is  so  great, 
that  tliey  leave  it  to  the  house." 

AFter  which,  the  king's  Message,  in  justifica- 
tion of  the  Faitueis  end  Officers  of  the  Customs, 
was^takeiL  into  consideration;  which  occasioned 
narm  Rebates,  and  the  Sptsker  (Finch)  being 
moved  to  put  the  question  then  proposed,  re- 
fused to  do  i^  and  said, '  That  be  was  otherwise 
'  commanded  h*  the  king.' 

Then  said  Mr.  SeUUn,  Dare  not  you,  Mr. 
Speaker,  put  the  question  when  we  command 
you  ?  If  you  will  not  put  it,  we  must  sit  still ; 
tlius  we  shall  never  be  able  lo  do  any  thing. 
They  that  come  after  you,  may  s«_v,Tl!ey  have 
the  king's  command  not  to  Au  it.  We  sit  here 
by  the  command  ot  the  king  under  the  Great 
Seal,  and  ^uu  are,  by  his  majesty,  sitting  in  this 
Toyai  chair,  before  both  houses,  appointed  for 
our  Speaker :  and  now  you  refuse  to  perrnrm 
your  office. 

Hereupon  the  bouse,  in  some  heat,  adjourned 
till  Wednesday  the  SSth,  when  butfa  houses,  by 
his  majesty's  command,  were  adjourned  until 
Monduy  the  Snd  of  March. 

March  9.  The  commons  met,  and  urged  the 
Speuker  li  put  [Pie  question;  who  said, '  1  have 
'  a  command  from  the  king  to  adjourn  till  March 
'  the  *10sh;  and  put  no  question.'  And  endea- 
vouring to  go  uut  of  the  Chair,  was  oolwiib- 
staiidiog  held  by  some  members  (the  bouse  fore- 
•eeing  a,  dissolution)  till   a  Protestation  inas 


published  in  the  house;  1.  "Against  Popery 
and  Arminianism.  9.  Against  Tonnage  aao 
Poundage  not  granted  by  parliament.  3.  If 
any  merchantyteld  or  pay  Tiuuiage  and  Pound- 
age not  granted  hy  parliament,  be  should  he 
reputed  a  betrayer  oflbe  liberties  of  England." 
Hereupon  the  king  sent  for  the  Serjeant  of 
the  house ;  but  he  was  detained,  the  door  be- 
ine  locked  ■  Then  be  sent  the  Gentleman  Usher 
(Of  the  Lords  house,  with  a  Messue;  and  be 
was  refused  admittance,  till  the  saidVotei  were 
read.  And  then  in  much  confusion  the  house 
wag  B^oumed  to  the  10th  of  March.  Nerer- 
tbeless  bis  mwesiy,  by  proclamation,  dated  the 
3nd  of  March,  declares  the  parliament  to  be 
dissolved.  [Though  the  proclaniBtian  was  not 
published  till  the  lOtb)  and  the  day  following, 
(the  Srdjwarrnnis  were  directed  firom  the  coun* 
cil  to  Denzjl  HoUis,  esq. ;  sir  Miles  Uofaart, 
sir  John  Elbot,  sir  Peter  Hayman,  John  Seldeo, 
William  Coriton,  Walter  Long,  William  Stroud, 
Benjamin  Valentine,  csqrs. ;  commanding  their 
personal  appearance  on  the  morrow.  At  whicb 
lime,  Mr.  Uollis,  sir  John  Elliot,  Mr.  Coriton, 
,Mr.  Valentine,  appearing,  and  refusing  lo  an- 
swer out  of  parliament  what  was  snid  and  dooe 
in  parliament,  were  committed  close  prisoners 
to  the  Tower ;  and  Warranu  were  given  (the 
parliament  being  still  in  being]  for  the  sealing 
up  of  the  studies  of  Mr.  Hollis,  Mr.  Selden, 
and  sir  John  Elliot.'  But  Mr.  Long  and  Mr. 
Stroud  not  then,  nor  tor  some  timo  after,  ap- 
pearing, a  Proclamation  issued  futtfa  for  the  ap. 
prehendiog  of  than, 

pnrposi.-. 

the  bona 

committed  to  prison  by  him  in  the  Star  Cham- 
ber, caused  certain  Questions  to  be  proposed 
to  the  Judges  upoD  the  asib  of  April.  Wbcre- 
opon  all  the  Judges  met  at  Sei^enut^-Iun  by 
cowmmid  from  hi*  m^csty,  rihen  Mr.  Attot> 


iS!]  STATETfOAlS.  SCbaklbsI  1029.— md oihat.  m  m  Babeat  Cmpm.  [23S 
kU  agreed.  That  regularly  he  cannat  be  com' 
pelled  out  of  parliament  to  aniiter  things  dona 
ID  parliament  in  a  parlismentar]'  conne ;  but 
it  is  Dtbentise  where  thin|i  are  done  eiorbi- 
imntljr,  for  tbose  are  not  the  acB  of  a  court. 

4.  Whelber  if  one  parliament  man  alone  shall 
resolvp,  or  two  or  three  ahall-  ixvtnly  conspir* 
to  mise  false  slanden  and  rumours  Mcaiast  the 
lords  of  the  council  and  judges,  not  with  intent 
to  question  them  ia  a  lend  course,  or  in  n  par- 
liamentarj  iray,  but  to  blast  them,  and  to  bring 
them  to  hatred  of  the  people,  and  the  govern- 
ment in  contempt,  be  jjunishable  in  li.e  Star 
Chamber  after  the  porlinment  is  ended  ^ 

Sul.  The  Judges  resolve.  That  the  same  was 
punishable  out  ofparliament,  as  an  offence  ex- 
orbitant committed  in  pariiiuaeiit,  beyond  the 
office,  and  besides  the  duly  ofa  parliament  man. 

There  was 'another  question  put  by  Mr.  At- 
torney, vix. 

Whether  if  a  man  in  parlinment,  by  nay  of 
digmsion,  and  not  upon  any  occasion  arising 
concerTiing  the  lame  in  parlinment,  shall  say. 
The  Lord!!  of  tl>e  Council  and  the  Judges  had 
■);reed  to  trample  upon  the  liberty  of  ihe  Sab- 
jtct,  and  the  Privil^ea  of  Parliament,  he  were 
punjiihnble  nr  not ! 

The  Judges  desired  to  be  spared  to  make  any 
Ausver  thereunto,  because  it  concerned  them- 
selves in  particular,* 


My  proposed  certain  Questions  concerning  the 
OSeaeet  of  some  of  the  pnrliament  men  cam- 
Bitted  to  the  Tower,  and  other  prisons  :  Al 
■hid)  time,  one  question  was  proposed  and  re- 
lied, vis.  •  That  the  statute  of  4  H.  a,  inti- 
'  led, '  An  Act  concerning  Kichaid  Strode,'  was 
'a  ^utictriar  act  of  parliament,  and  extended 
'only  to  Richard  Strode,  and  to  those  penons 
■tbii  bai  joined  with  lum  to  prefer  a  Bill  to 
'd)c  house  of  commons  concerning  Tinnen  : 
'  And  tlthoogb  the  act  be  piiTmte,  and  extend- 
'  eth  to  them  alone,  yet  it  was  no  more  than  all 
'other  parliament  meo,  by  privilege  of  the 
'bouse,  ought  to  hare,  tii.  Freedom  of  speech 
'concerning  those  matters  debated  in  parlia- 
'ment  by  a  parliamentary  coarse.' 

The  rest  of  the  Questions  Mr.  Attorney  was 
vishedtiisetdown  in  writing a^inilanotlicrdny. 
Upon  Monday  fallowing,  ^1  tha  Judg^  met 
spin,  and  then  Mr.  Attorney  proposed  these 
Quslions  1 

1.  Whether  if  any  Subject  hath  recei»ed  pro- 
bable information  of  any  Treason  or  treacherous 
ittcmpt  or  intentioa  agaiuet  the  king  or  state, 
that  Object  ought  not  to  make  known  to  the 
ling,  or  his  majesty's  commissioners,  when 
tbeteunto  be  shall  be  required,  nhat  infonaa- 
Veo  he  hath  received,  and  the  grounds  thereof; 
N  the  end  the  king  tieing  truly  informed,  may 
ptereot  the  danger  ?  And  if  the  said  subject  in 
■Bch  case  shall  refuse  to  be  examined,  or  (o  an- 
saerilie  questions  which  shall  be  demanded  of 
IwB  lor  mriber  i^iquiry  and  discovery  of  the 
tniili,nfaetheritbe  not  n  highcoutempt  in  him, 
pBuishable  in  the  Star  Chamber,  as  au  offence 
■piftst  the  general  justice  and  government  of 
lie  kingdom  ? 

Sai,  Tlie  resolution  and  answer  of  all  the 
Jaslices,  That  it  is  an  offence  punishable  at 
albnsaid,  so  tlwt  this  do  not  ccncem  himself, 
batanotber,  nor  draw  him  to  danger  of  treasoB 
or  contempt  by  his  answer. 

1  Wbeiber  it  be  a  good  answer  or  excuse, 
bang  thn^  interrogated,  and  refusing  to  atuwer, 
to  say,  That  he  was  a  parliament  man  when  he 
teceived  the  information,  and  that  be  spake 
Aereofin  the  parliament  bouse :  and  thereibre 
the  parliament  bring  now  ended,  he  refused  to 
tamer  to  any  such  questions  but  in  the  parlla- 
neat  house,  and  not  in  any  other  place  } 

Sai,  I'o  (hii  the  Judges,  by  advice  privately 
to  Ur.  Atlottiey,  gate  this  Answer,  "niat  thu 
eicase  being  in  nature  of  a  plea,  and  an  error 
in  ju(%meni,  was  not  punishable,  until  he  were 
Mn-ru)ed  in  an  orderly  manner  to  make  ano- 
ther answer;  and  whether  the  party  were 
l>'in^  in  ort  tenm,  or  bf  iurntmation,  for  this 
)Aea  be  was  not  to  be  punished. 

3.  Whether  a  pnrhnment  roan,  committing 
•a  oSeace  against  tlie  king  or  council  not  in  a 
pwliaincnt  way,  might,  nfter  the  parliament 
Bided,  be  pnnisHed  or  not .' 

Sol,  All  the  Judges,  una  W(e,  answered,  he 
■>iiht,ifhe  be  not  punished  for  it  in  parliament; 
fcrthc  pBrliamentshallnotgive  privilege  to  any 
'contnt  murem  parliamentarium,'  to  eni^eed  tbe 
bwnds  and  bmits  of  his  place  aud  duty. 


And 


"  Nalson  in  his  Collections,  »ol.  2,  p.  374, 
says.  There  were  several  Questions  prnposed 
to  the  three  Cbief-Jud^rs  about  mattera  in  Par- 
hanieut,  to  which  they  fjnvc  these  answers ; 
which  bein):  something  different  from  what  is 
nhore,  are  here  inserted:  Quirre  1,  Whether  a 
Parliament-man,  offending  the  king  criminnlly 
or  contemptuously  in  the  pnrliiiment-houwi 
(and  not  then  punished),  may  not  be  puni^ihed 
out  oF  parliament  f  Atimer,  We  conceive,  that 
if  a  parliament-man,  exceeding  the  priviltge  or 
parlinment,  do  criminally  or  conlemptuously 
offend  the  kin^  in  the  parliament- ho  use  (and 
not  there  punUfaed)  may  he  puuished  out  of 
parliament. — 2.  Whether  the  Ling,  as  he  bath 
the  power  of  calling  and  diMoIring  a  Parlia- 
ment, have  not  also  an  absolute  power  to  cause 
it  to  be  af^Durned  at  his  pleasure  f  Am.  We 
conceive,  that  the  king  hnth  the  power  of  com- 
manding of  adjournments  nf  parliaments,  as 
well  as  of  catling,  proroguing  and  dissolving  of 
parliaments :  But  for  the  manner  thereof,  or 
the  more  particular  answer  to  this,  and  the  upxt 
subsequent  question,  we  refer  ouneUes  to  the    - 

Erecctients  of  both  houses. — 3.  Whether,  if  the 
iiig  do  CDTnmind,an  adjouminent  to  he  made, 
he  hath  not  also  power  to  command  all  further 
proceedin|;s  in  paiiiament  to  cease  atthat  time? 
4.  Whether  it  be  not  a  h^h  contempt  in  a 
member  of  tha  bouse,  contrary  to  tbe  king's 
express  Commandment,  conteinptnously  to  op- 
pose the  at^oumment  t  Am:  The  king's  ex- 
press commindmeD  I  being  signified  fc -* 


joumment,  if  any  afUr  that  shall  oohtemptu-- 
oud^  oppose  it,  nirther,  or  ot'       '      < 
privtlege  of  th«  house  wiU  t 


c  than  the 


o  be  a  great  contempt. — 5.  Wltetlier, 
it'  a  few  pari  lani  CI  it-men  du  conspire  together, 
to  iiir  up  ill  affections  in  ilie  people  ogaiuit  the 
king,  and  tbe  government,  aud  to  leave  tlie  par- 
liiimcnt  with  nuch  a  loose,  and  by  words  or 
wiitinirs  put  it  in  execution,  and  thi*  not  pu- 
nished ill  parlinmirnt,  it  be  an  ofience  puninlia- 
bJL- out  ol' parliament  f  Ans.  We  conceive  iliis 
utTence  to  ba  punislinblp  out  or  parliament. — 
C.  Wliether,  if  some  parliament- men  shall  con- 
spire ini^cther  to  publiah  paper*  cuntauii'iig  tnlse 
iind  sciuiiiulous  nuuoun  aj^aiiist  tlic  lunli  of 
li'C  I'rivy-Council,  or  aof  one  or  more  uf  them, 
rut  to  the  end  to  qucsiion  tlicin  in  a  legal  or 
)i:irliatnentary  way,  but  to  bring  ihem  into  ha- 
Iri'd  ol'  llie  penplu,  and  the  government  into 
I  ijiitcnipi,  and  to  uuke  discord  betw< 


offeii 


iiisliable  out  of  parliaineiit?  Am.  Wi 
■  his  vUo  u>be  au  offence  punishable  out  of  par- 
liimeiil.— r.  If  (WO  or  three  or  more  of  the  par- 
iimiicnt  shall  conspire  to  defame  the  king'ii  go- 
vi'riunent,  nnj  to  deter  his  subjects  from  obey- 
iti|;  or  aiaistinK  the  Ling;  uf  wb at  nature  ibis 
oill'iica  iaf  Am.  The  iialure  aud  quality  of  this 
itlTmiie  ndl  be  greater  or  lesser,  as  the  ciicum- 
sliinci:s  stiali  full  out.  Upon  the  truth  of  the 
lact, — 8.  Can  any  priviirf[e  of  tlie  bouse  war- 
laut  a  tumultuous  proceeding t  Ant.  We  huio- 
bly  conceive,  that  an  earnest,  ihuugh  a  disor- 
ilerly  and  c<infused  proceednig  in  such  a  multi- 
tude, may  bo  called  tumultuous,  and  yet  tlie 
privilege  uf  ilie  bouse  may  vrarraut  it. — We  in 
all  hiimbicoess  ore  willing  to  satisfy  your  roa- 
Jekty's  comm:ind,  but  until  the  particular*  of 


ibe  fuct  do  appear,  we  can  give  no  direct  j^n- 
I  betore.     And  pariJculatly  u  tu  tlie 


■S  than  befoi 


■  That  Mr.  Wilflam  Stroud  was  committed 
'  under  my  custody  by  virtue  of  a  certain  Wai^ 
'  rant  under  the  nands  of  twelve  the  lord*  of 
'  the  privy-council  of  the  king.  The  tcnour  of 
'  wliicli  Warrant  followeth  in  these  word*  i 

take   knowledf^e,  that  it  ii  his 


339]     STATE  TRIAt&  S  Ch.  I.  \029.—PrMeedui^  agemui  Wm.  Stroad,  e*q.      [240 

The  next  day  Mr.  Attorney  put  the  Judges 
another  case. 

It  is  demanded  of  a  parliament-man,  being 
called  oreUimi,  before  the  court  of  Star-Chani' 
ber,  being  charged,  that  he  did  nut  submit  hioi- 
aelf  to  examination  for  sucb  thiogs  as  did  con- 
cern the  king  and  tlie  government  of  the  state, 
and  were  affirmed  to  be  done  by  a  third  person, 
and  not  by  himself;  if  he  confesses  his  hand  to 
that  refu«iJ,  and  make  his  excuse,  and  plead 
because  be  had  privilege  of  psrliametit; 

Whether  iJie  Courf  will  not  over-rule  this 
Plea  as  erroueous,  and  lliat  he  ought  to  make 
n  further  answer  f 

Aiu.  It  it  the  justest  wny  for  the  king 
and  the  party  not  to  proceed  ore  Itnui,  because 
it  being  a  point  in  law,  it  is  fit  to  hear  counsel 
before  it  be  over-ruled ;  and  upon  an  ore  lenui, 
by  the  roles  of  Star-Cham ber,  counsel  ooght  noi 
to  be  admitted ;  and  that  it  would  not  be  for 
tbe  honour  of  the  kii^,  not  the  safety  of  the 
subject,  to  proceed  in  th:U  manner.  [But  tbe 
kifig  droppnl  the  Proceedings  agninft  them  in 
the  Star-Chamber.] 

Pascli.  5  Car,  upon  an  Ilabens  Corptn  of  this 
court  to  bring  the  body  of  William  Stroud, 
esq.  villi  the  cause  of  his  imprisonment,  to  tbe 
marshal  of  ttie  King's-beucb ;  it  was  returned 


'  liam  Stroud,  esq. ;  and  keep  bini  close  prisoner 
<  till  you  shall  receive  other  order,  either  from 
'  hi*  majesty,  or  this  board  :  fur  m  daiog,  this 
'  shall  be  your  Warrant.  Dated  tliis  ed  of 
'  April,  1629.'  And  the  direction  of  the  Wa*- 
rant  was,  'To  the  marshdl  of  the  King'»- 
'  bench,  or  bis  deputy.' 

He  is  also  detained  in  prison  by  virtue  of  a 
Warrant  under  his  majesty's  bantf;  the  tenouc 
of  which  Warrant  followetb  in  these  word*  : 

C.  K. ;  '  Whereas  you  have  in  your  custody 
'  the  body  of  William  Stroud,  esq.  by  Warrant 

■  oF  our  lords  of  our  privy-councd,  by  our  spf- 
'  cini  command,  you  are  to  take  notice,  that 
'  this  commitment  was  fur  no tnble  contempts  bj 

■  him  committed  against  our  self  and  our  go- 
'  vemment,  and  for  stirring  up  sedition  against 
'  us;  for  which  you  are  to  detain  him  in  your 
'  custody,  and  to  keep  bim  close  prisaner, 
'  uatil  out  pleasure  be  further  known  concera- 
'  ing   his  deliverance,      Given   at  Greenwich, 


second  Quzre,  about  tbe  king's  potter  of  ad- 
jotlrniog  as  well  a*  culling  and  dissolving  of 
I'arliatneuts,  these  following  parlinmentaryjpre- 
cedents  were  given  in.  4  Aprilis,  1  Jnc.  Sess. 
1.  Mr.  Speaker  pronouncelh  his  majesty's  plea- 
sure of  ai^juuruing  the  boute  till  tbe  11th  of 
Aoril  (and  it  was  so  done.)— 18  Dec.  1606. 
The  birds  by  their  messengers  signified  tbe 
king^s.  plensure,  that  the  session  should  be  ad- 
journed till  the  lOtli  of  Feb.  following. — Upon 
this  iMeasBge  Mr.  Speaker  adjourned  thehouae 
according  to  his  mqes^'s  s:iid  pleasure. — 31 
Martii  1607.  Tbe  Speaker  dclii  ered  the  king's 
pleasure,  that  the  house  sliould  be  ndjouuied 
till  Monday  tbe  SOih  of  April  follimins: — 20 
Mail  1607.  Mr.  Spenker  signified  ilie  kine's 
pleasure  about  nine  o'clock  tu  ailjiiuru  tlie 
house  till  the  QFth  of  tbe  same  month. — And 
tbe  S7th  of  Mny,  lie  being  challenged  fur  ad- 
journing without  the  privity  of  the  bouse,  he 
excuselh  it,  and  saith,  as  tbe  hojise  had  power 
to  adjourn  themselves,  so  the  king  bad  a  su- 
pfriiir  power,  and  by  his  commmdlie  did  it. — 
SO  Marlii  1610.  ilis  majesty's  pleasure  to  ad- 
journ from  Tuesday  till  Monday  !>evennighr. — 
11  July.  The  kin^  by  commission  adjourneth 
(he  lords  bouse.  Messengers  sent  tu  the  ooto- 
inons.  They  send  by  messeo^en  of  their  own 
to  the  lords,  that  they  use  to  adjourn  themselves. 
The  commission  is  sent  dowo,  Mr.  Speaker  ad- 
JQuraeth  the  house  till  tlie  1st  of  August. — SS 
rebr.  4  Car.  Mr.  Speaker  sii^nifieth  his  ma- 
jesly't  pleasure,  that  the  house  be  presently  ad- 
jouTTied  till  Monday  next,  and  in  tbe  mean 
time  all  committees  and  other  proceedings  to 
cease.  And  thereupon  Mr,  Speaker  in  tbeDama 
of  tbe  bouse  adjoumed  the  same  according:!!. 


Ul)    STATE  nUAI^  5  CuAKLEt  I-  1629.— «id  aden,  m  m  Ifa&eat  CbrjMif.     [S4S 


'dwRbof  Uaj,  16«9,ia  the  5th  jcm' of  oar 

iDedircctioD  being,  'To  tbcioanhal  of  our 
'bcsch  br  tbe  ntne  being,  et  ha  suntcaiiSK 
'captiooi*  ct  delCDtioni*  pr«dicti  Gulielmi 
•Stroml.', 

Apd  spoo  ■DDther  IM)mi  Corpus  to  tbe 
Ibnlml  of  ibe  HouthoU,  U  im,vt  the  bod;  of 
Wtlur  Long,  esq.  in  conit,  it  wu  reRnned  ao- 
mrdii*  u  the  return  of  Mr.  Stroud  was. 


(fcoonMJ  fir  Mr.  Long;  ergued  againat  the 
iauffideiicj  of  tbe  Relum. 

Mr.  Jtk.  That  the  Return  wm  inuifiiciene. 
Vie  Rctoni  coniisu  apoD  two  Wairants,  bearing 
Knnl  dates,  which  are  the  cause*  of  tbe  taking 
nddetainingoflhi  prisoner.  For  tbe  firat  war- 
oat,  vbich  is  of  thelordiof  ihecouDcJ,  that  is 
i«ifidtat :  because  do  cauie  ii  shewn  of  bit 
ctaiaiaDent,  which  is  eipreslj  against  the  re- 
niitian  of  the  ptirliameat,  and  their  Peiition  of 
lifht,  ia  tbe  time  of  ibis  kio]:,  which  now  is, 
Mflbich  be  hat)  hkeniae  pven  hisaaient;  so 
ba  taking  bj  virtue  of  the  nid  warrant  is 
ans^ul.  And  for  (be  second  warrant,  it  is 
iatiSK^ieiit  also,  and  that  Dotwithitanding  il  be 
ikkii^'sown;  for  UiekinghinilGir  cannot  im- 
ffiioD  BD7  nuui,  as  our  booki  are,  to  wit,  16  H. 
li,F.Ii!oDitrancedeiHits.  1  H.T,4.  Uussey  re- 
futs  it  to  be  the  opinion  of  Markhsai,  in  the 
tiKK  of  Edw.  4,  and  Forteacue  'in  his  book, 
'Delaudibiu  L^in  Anglic,'  c.  IB.  And  the 
KSKMi  pt^ih  ■>>  because  no  action  of  false  im- 
prinument  Ties  ftgnintt  tbe  king,  if  th«  impri- 
anatent  be  wrowiid;  and  tlie  kinj;  cannot  be  a 
■tang  doer.  Tbe  statute  of  Magna  Charts 
il,  Tbac  DO  fiweman  be  itnprisoned  but  bj  the 
kw  ot  the  Und.  And  it  appears  bj  these 
baoh,  that  it  is  against  the  law  of  the  land  that 
the  king  sbonid  imprison  an]i  one. 

i.  Admit  that  this  be  oolv  a  sign i flea tian 
M  notlficBlioD  given  bjr  the  ting  himself,  of 
>1k  commitmeDtj  of  ibe  prisoner;  jet  it  seems 
ilatthats,i|>itificHCioD  isof  no  force,  1.  Because 
Ike  words  are  genenl  and  uncertain — '  fur  no- 
'tiUe  con  temp  ts.'—Th  ere  are  in  (be  law  ms»7 
Coctcmpls  of  sevend  natares;  tliere  are  cou- 
Unpls  spinst  the  Common  Law,  against  the 
Swite  Law  ;  contonpts  in  words,  gestures,  or 
snions.  And  it  appears  aot  to  the  court  of 
■bit  oature  these  contempts  were. — '  Notable' 
— Eretj  conleinpt  nbich  ia  made  to  the  king  is 
MtaUe. — '  Against  our  EOTemment' — Con- 
itmpt  which  is  ciaimitted  in  the  Court  nf 
Keeord  or  Cbnacerj,  a  a  contempt  against  the 
(srenunenC  of  the  king,  to  wit,  becanse  tbry 
imobtr  the  king  when  lie  commands  thera  bif 
bsvms,  Coke  8,  60,  a.  Beeeher's  Case.  The 
lot  kords  of  tbe  Etturn  are, — '  For  stirring  up 
'■fstdiiian  against  us' — which  words  likenise 
•^indefinite  sndeenemt.  I.  find  not  the  word 
'Sedition'  in  our  boots,  buujlaken  ndjectiTely, 
St  leditions  books,  seditions  news,  &c.  lo  the 
ClatMeof  [he  1st  and  9d  I'bil.  and  Mary,  cap. 
l.ltx  words  are,  '  If  an;  person  shall  be  coii- 
'  'icted,  Stc.  for  spmkiag,  Ste.  *n<f  false,  -ludi. 
*i>t-  lit. 


'  tious,  or  slaiMleTOos  news,  sajiing  of  tales  of 
'  the  qneen,  Sec,  be  shall  lose  his  cars,  or  pay 
'  1001.'  There  tbe  penalty  imUMed  upon  such 
sedition  is  but  a  fine.  Coke  4.  Lord  Cromwel't 
Case,  p.  13,  where  sedition  is  defined  to  btt 
Meonua  ilio,  when  a  man  takes  a  course  of  bis 
own,  and  there  it  is  said,  that  the  words 
— *  maintain  sedition  against  tbe  queen's 
'  proceedings' — shall  be  eiponnded  nccortling 
(o  the.  coherence  of  all  the  woids,  and  tbe  io- 
leuC  of  the  parties.  So  that  it  is  plain,  that 
there  is  a  sedition  that  is  only  fiueabie,  and 
which  is  no  cause  of  imprtsenment  with* 
out  bftil;  And  what  the  sedition  is  that  is  here 
intended,  cannot  be  galheied  ont  of  the  words, 
tbej  are  so  geuersi. — '  Against  us* — those  nords 
ore  redunduit,  for  every  sedition  is  against  the 
king. 

Upon  tbe  generaiily  and  incertainty  of  all 
the  words  in  tbe  Return,  be  put  these  Cases ; 
IS  E.  3.  A  man  was  indicted,  <  qnia.  fiiratos 
'  est  equuin,'  and  doth  oat  tty^ebmici,  and 
therefore  ill.  99  Ass.  45.  A  man  was  indicted 
that  be  was  '  conunnnis  latro,'  and  tbe  iitdict- 
ment  Iwld  fidous,  because  too  general.  So 
here  the  oSences  are  returned  generally.  But 
there  ought  to  be  something  individual,  Cok« 
S,  ST.  Specot's  case,  '.<iuiB  sclusnutticus  inTe> 
'  terotus,'  is  no  good  caose  for  the  bishop  to  re> 
fuse  a  clerk,  for  it  is  too  [jeneral,  and  there  ara 
schisms  of  dirers  kiads^  SB  E.  3,  3.  Because  tbe 
clerk  is  criniiiHinii,  it  is  no  good  causa  tor  the 
bishop  to  refuse  him.  8  and  9  Ein.  Dy.  954. 
The  Ijisbop  ofN.  refo'rth  one,  becsose  he  wa* 
a  haunter  of  taverns,  &c.  for  wbich,  and  diveis 
other  crimes,  he  wns  unfit  j  htid  that  tbe  last 
wards  ore  too  general  and  incertain.  40  £.  3,  6. 
In  the  tender  of  a  msrrioge,  and  refusal  of  the 
heir,  beonght  to  aUedge  a  certain  cause  of  re- 
fusal, whereupon  issue  may  be  taken.  Cuke  8, 
68.  Trollop's  case,  to  say,  That  the  plaintiff  i* 
eicommunicatcd  for  dirers  contumacies,  shall 
not  disable  hin,  without  shewing  some  cauie  in 
special  of  the  eicommuuication,  upon  which  the 
court  may  judge  whether  it  were  just  or  no :  so 
here.  And  he  concloded  with  a  Case  tliat  was 
resolved,  HUI.  33  EJii.  Peak  and  Paul  the  de- 
fenilants  said  of  ttie  plaintiff,  Tliou  art  a  muti- 
nous and  seditions  man,  and  maintainest  sedi- 
tion against  tbe  queen ;  and  tbe  wordsadjudged 
not  actionable. 

Mr.  Mown  (aficrwards  recorder  of  London) 
moved  also,  that  tbe  Return  was  insuflicient. 
For  tbe  £ist  Warrant  That  h«  was  cnmmiited 
by  command  of  tbe  king,  sienified  by  the  privy- 
council,  I  will  aot  argue  that,  because  it^vtas 
claimed  as  an  ancient  right  pertaining  to  tbe 
subject  in  Che  Petition  of  Right,  whereto  the 
king  himself  hatfi  given  his  conwnC.     For  the 

second  Warrant,  tlie  lieium  is,- '  for  stirr- 

'  ing  up  sedition  a^insl  .us  niid  our  i^overn- 
'  mcnt.'  Sidition  is  oot  any  determined  of- 
fence witliin  our  law  ;  our  law  gives  definitions 
or  description*  of  other  offences,  to  wit,  of 
treason,  murder,  frlonj,  &c.  but  there  is  no 
crime  in  uur  law  called  Sedition,  it  is  defined 
by  a  civilian  CO  be  '  Seditio,'  or '  Scceisiu,  cue* 


a4&]  ?£ATE  'S&IALS,  5  Cb^mmI  \&ia.^grocetdiHgi  againtt  Wm.  Stntud,  aq;  {ii^ 

cbureb ;  tbcj  are  to  ba  ponuhed  Wl.  by  (be 
moDth.  Out  of  all  which  natures  it  ms;  ba 
collected, ihatthe word  '«ditJoii'  iitd«ii*a- 
rtouslii,  acnoiding  lo  ibe  subject  in  faaiKi.  And' 
Coke  4, 13.  Lord  Cronnrer*  case,  *  seditiDui'' 
referred  to  doctrino  There  are  cdanca 
nMre  high  id  their  nature  than  KditbD,  which 
were  not  treasoa,  unleat  ao  declarcit  bj  act  of 
parliemcac.  Ever^  rebeUions  act  ii  sedition, 
if  Gucb  acts  be  oot  witbio  the  statute  of  35 
3,  ihej  sre.  nottreston.  17  R.  3,  c.  8,  in- 
■jirreciiDii  of  viUeins  and  others  is  made  trea- 
EOD ;  which  proves,  thet  before  this  aCl  it  was- 
not  treaton.  Aud  this  act  of  17  R.  S,  n  l«- 
pealed  bj  the  scanie  of  1  H.  i.  Bj  Che  sta- 
tute of  3  and  4  £.  6,  c.  5,  to  asstmble  peopla 
■.n  alt«i  the  laws,  is  made  tresMn,  if  the;  con- 
tinue together  an  hour  afterpioclaDiatioa  mad*. 
This  aueiablj  of  people  itas  tedition  at  tbo 
ommon  law;  aud  the  very  Bsaeoibl]!,  if  tha^ 
.tier  diisolvc  upon  praclamatioa  made,  is  oob 
reason  bj  the  haid  statute.  B;  the  (tatiit« 
if  14  Elii.  c.  1.  it  is  nude  fdonv,  maliciously- 
and  rebelliousl;  to  hold  from  the  queen  any 
castles,  C(c.  hut  bccaiMC  this  rslatet  not  tv 
the  statute  of  3i  E.  3,  it  is  not  treason.  9.  It 
■eetns  cleaily,  thatihiscase.  is  within  the  Peti- 
tion of  Hijiht,  in  which  Magna.  Charta,  and  the 
itatulei  of  as  and  38  E.  3,  are  recited.  Tb« 
grievance  there  was,  that  difers  hava  been  iin- 
ptisoued  without  nnj"  cause  sbewad,  to  whtcb 
thej  might  make  ansWar  according  to  the  law. 
And'  upon  this  return,  nothing  appears  t    *'  ~ 


fpars  reipnUioQ  cntitra  portam  iusunit;'  so 
tbEt!^>i[toa  iaitfttkingbutdiviaion.  Ekacton 
and  Olanejle  hare  the  word  Seditio  geneialiy. 
Before  the  staiutaof  45  E.  3,  cap.  3,  it  <ta* 
not  clear  enough  what  thing  sbb  Treason,  what 
not ;  h;  wluch  statute  it  is  dadand  what  shall 
be  called  Treason,  and  that  the  Jodges  shall 
not  declare  any  itiing  to  ha  Treason,  that  is 
not.  cODlained  witlun  the  Eakl  sfatnte,  but  it 
(ball  be  dsclareU  oal;  bj  pariiameat.  Aikd 
that  statute  spesks  iiot  of  EeJtlion,  nor  lb*  sta- 
tute of  1  il.  4,  c.  10,  which  makes  some  tbiuKi 
treason,  which  are  not  contained  witb  the  said 
Malute  of  35  E.  3.  The  statute  of  1  E.  6,  c. 
19,  takei  awaf  all  intervenient  statutes,  which 
declared  new  treasons;  and  the  said  act  de- 
clares other  thin^  to  be  tccason,  but  mentions 
not  seditiou.  S^ition  is  the  qualSt;  of  an  of- 
fcBce,  and  is  oftantiinM  token  adverhiall;,  or 
adjectirelj.  Te  raise  luinults  or  IreeoBsses  is 
sedition,  Trb.  31  E.  3,  loc.  ^5,  B.  R.  Garbart's 
case;  a  man  was  indictcil.  because  in  the  bigb- 
atreetbe  took  J.  S.  there  being  in  hostile  nait- 
ser,  and  usurped. over  liim  rubral  power,  which 
)•  manifest  sedition  ;  and  there  it  wa^  but 
indictment  of  trespass.  Mich.  aO  E.  1,  rot. 
One  that  wu  surreyor  of  tbe  wood  work  for 
Ibe  kiag,  wa«  indicted  tor  stealing  of  timber, 
and  detaining  wages  (ridding  cerpenteca  wages) 
b;  one  that  was  but  aboj^;  and  this  i)  there 
termed  sedition,  and  jet  it  iras  but  a  petty  fe 
lony.  Micfa.  43  E.  3,  rot.  05.  B.  R.  K.  Pope 
was  appealed  by  the  wife  of  J.  S.  because  he 
{donioualy  and  seditiously  munlered  J.  S.  and 
*  aeditiousiy'  was  there  put  in,  becauie  it  vaa 
doneprifily.  By.wbichciuesii  appean,thaiSe- 
ditbn  is  not  tuken  ni  a  subatantiTe,  so  that  it  may 
be  applied  to  irea»on,  treapass,  or  other  oSances. 
By  the  sutute  of  3  U.  4,  c.  15,  there  is  a  pu- 
Dishment  inflicted  for  the  raising  of  seditious 
docbiue,  and  yet  no  punishment  could  have 
been  inflicted  (br  it  untd  the  said  siatale ;  nod 
yet  11  was  Mditious,  as  well  before  the  said  sta> 
bite. as  after.  And  this  appean  also  by  the 
ttatutc  of  1st  and  <d  of  Philip  and  Mary,  c.  3, 
wbicb  bath  beah  cited.  The  statute  13  Elii. 
c.  3.  recites,  that  divers  seditious  and  etil-dis- 
pused  petBons,  &c,  obtained  bulls  of  reconcili- 
ation i'roin  the  pope,  which  oflence  was  made 
treason  by  the  said  statute,  (fur  il  was  nnt  be- 
fore, and  yet  there  wot  sedition)  and  by  the 
said  BtatuK,  the  aidera  and  abettors  ara  Init  in 
the  case  of  Prenutnire.  By  tbe  statute  of  13 
Klii.  c'  1,  for  the  aroidiiig  of  coi.rxntious  and 
•editions  titles  to  the  crown,  It  is  exacted  by 
the  said  statute,  That  he  that  shall  declare  the 


,  is  not  treaaoii  .by  the 
common  law,  nor  is  it  ftiade  treuaon  by  tbe 
statute  of  35  E.  3,  ndr  by  the  statute  of  13 
Elii.  By  tbe  statnta  of  93  Elii.  c.  3,  he 
tliat  tpeaks  seditious  nr  slanderoui  news  of 
tlie  queea  shall  lose  his  ears,  or  pay  tOO/. 
and  (he  second  oQance  ia  mads  ii^lany.  The 
•talute  of  35  Elii.  c.  1.  it  againu  seditious 
•ecta^ies,  which  abtent  tbeDudrcs  front'  iba 


peat^  not  what  that  act,  MbtelJ'is  called  S 
tion,  was.  This  is  the  very  grief  intended  to 
be  remedied  by  tbis  statute ;  to  this  be  cannot 
aoBwer  accordmg  to  law.  It  appears  notwhe- 
ther  this  were  a  seditious  act,  trespass,  or 
slander,  or  what  it  was  at  all.  The  words  ai*, 
'Sedition  acainst  tbe  king;'  this  helps 'not, 
far  every  offence  is  against  the  king,  against  hi* 
crown  and  digni^ ;  that  which  disturb*  tha 
commonwealth  it  against  the  king;  seditioaa 
dactrine  is  leditian  ogainst  the  king,  as  is  be- 
foresaid.  In  38  H.  6,  tiidt  prettrat.  fol.  19.  tho  - 
lords  and  cafmnotii  desire  the  king,  that  Wil- 
lium  de  la  Pool  may  be  commiitMl  Bk  diaera 
treasons,  and  sundry  other  b«nous  crinn; 
and  the  petition  held  not  good,  becauia  toe  ge- 
neml:  *hereupoa  they  enbibitparticular  Arti- 
cles against  him, — Aud  therefore  upon  tha 
whole  matter,  prayed,  that  Mr.  Long  might  h^ 
dlschai^ed  from  his  impritonmant. 

On  another  day,  Berkley  and  Daveaport, 
the  king's  Seijeants,  a^cd  for  the  king,  tint 
this  Return  was  suihcieiit  in  taw  to  detain  tbent 

Berkky  ht^a,  and  said.  That  the  case  is 
new,  and  of  grvat  weight  and  consequmoe; 
and  yet,  nider  favour,  the  pmofnuiva  «f 
the  Ling,  apd  the  liben^  of  tba  aubject,  aro 
""  "■"■■■ly  touched  iherem ;  forthe  cr— 


so  general  as  It  hath  been  made,  but ju 


ciiIbt 


tha  Subject  is  a  tender  poiBi,  tbe  ligbt  whereof 
is  greaf,  jus^  and  ianolabla,    Tbe  I'renigaiiTC 


1*5]    CTATE  TRIALS,  5  Chauli*  I.  1629.— mi  wfcw,  btt  an  flateo.  Catfut.     fMl 


of  ^  StOf  it  an  1^^  poinr,  to  whicb  -cTcrj 
■bjecl  ooglit  ta  lubout.  I  intrndiiat  tuiuBke 
ur  riocooiH  pf  the  one  or  the  olhpr,  I  will 
MjnatmbtT  what  the  kioe  bath  determined 
ufKni  diem  txitti,  in  hb  ipeecb  which  he  niute 
4ipDD  the  Fecitinn  of  R'i|;ht;  to  wit,  ihnt  the 
ptt^'i  LJbeoies  Blren^tben  the  ting's  Pwro- 
pbr^  ■nd  thw  the  LiDg'a  Preroijaiive  is  t« 
ieftad  the  people'!  Liberties.  Thii  inny  nettle 
tk  heuow  the  people  coneerniogtbeir  liberty. 
na  nj  wtucb  I  inteiid  to  treat  in  m*  sr^- 
Neol,i>,  Eg  umrerttieUt^ectionifindKeiiaona 
wkidi  Imje  boen  n»de,  and  lo  ;;ive  Mime  Rea- 
mo,  whertby  thh  lecuni  ihdl  be  luffident. 

The  Otgections  wtiich  hnve  been  made  are 
nduciUe  ta  faar  heada:  1.  Bj'  vrhnt  the 
praanA  here  iball  ba  add  to  be  committed 
wd  dttained-  «-  That  this  cammitnieiit  is 
ipiuc  the  P«tiiion.of  Right.  3.  That  the 
MB*  irlach  is  bM«  retumed  i)  general  and  in- 
nnim.  4.  That  the  ofieocet  meotioned  in 
lU  BctBm  are  bat  flDeabte;  and  thercibre, 
■otwitliuandtng  them,  the  parcr  ia  bailable. 

For  tbe  hm,  it  hath  be»n  objected,  .That  the 
coamiMuni  here  waa  b;  Che  lords  of  the  privj- 
coaadl,  and  the  iigni6caiion  of  this  cause  is 
if  the  bog  faimaHf.  Bat  1  mj,  that  diere  is 
*  hrtbar  matter  in  the  retam  ;  for  the  Inrdn 
•flh*  eooMcil  da  it  bj  the  coaimand  of  the 
tn^tOd  they  only  pume  ihis  cOniBiand.  1 
■ill  Mt  dispate  whether  the  Lords  of  the 
Coiticil  have  power  lo  commit'  an  ofiender  or 
*»,  k  is  cammoa  in  etperiehce,  8.1  U.  6,38. 
foipie^  CaM  ii  eipreaa  in  it.  And  in  the 
ttuioa  of  ttwht  it  is  admitted,  that  thej  may 
Mi»it.  And  this  is  not  alledged  there  for 
iffttnate,  but  tb«  grievaorre  there  wai,  be- 
CMse  tbepartknlarcEarte  of  commitment  was 
BNahcwed.  Some  books  hare  been  objected 
n  pten,  that  Cta«  king,  though  in  person, 
OBBotcbBmit  id;  pertoni  16  H.  6,  F.  Mon- 
Mrance  da  foiti  18t.  Bat  the  anthoritT  oF  that 
book  Tanitbesb;  if  the  case  be  pat  at  large, 
which  waa  in  ttcspaaa  for  cutting  of  trees. 
tht  defendant  said.  That  tbe  place  where,  Sec. 
k  ))*rcel  of  Itie  manor  of  D.  whereof  the  Icing 
■  Miicd  hi  ft«,  and  th«  king  commands  us  to 
m.  And  the  opinion  of  ths  court  was,  that 
tUi  i»  BO  plaa,  withoac  ahening  a  specialty  of 
Ikt  cobmand  of  the  king.  And  there  the 
■boliooort  HjiiThatiftbekii^Conimandme 
la  arttw  a  man,  whereby  I  arrest  him,  hi  thaH 
kare  treapasa  or  impnaonment  agnintt  n>e, 
dllMa(h  ir%e  done  in  (he  presence  of  the  king, 
Thi  tbe  following  words  are  to  bt  nnderstood, 
tetlw  principal  case  was  of  one  command  of 
Atkipg  bj  word,  and  Aea  sud>  command  bj 
vanl  to  arrest  a  man  i*  >oid.  And  IH,  t,  A. 
«*■  oHecced ;  Hmw;  says,  th«t  Marlhaffi 
Madtokigg  Edw.  4,  that  he  cannot  arrest  a 
■BBS  fat  tospicioii  of  treason  or  felony,  becai 
if  h  do  wnuig,  the  party  camot  havehis  actA 
To  tUi  I  ray,  Tbtt  ibe  book  there  is  to 
aaierMood  of  a  wrotttfiil  arreat,  for  there  il 
V^kmof  aoEKi^ohof  folseimpristnnneOt;  and 
•  neogfat  ert«st  cannot  be  made  by  the  king. 
'-  ' ■«  Boli^itbtbafligoityoftbeking 


to  an«at  any  tnna.    Coke,  4.  T3.    The  Uiig 
Fnakn  a  leate  for  yean,  rendering  rent,  with 
condition  of  le-enlrj  fur    non-paymtnt ;   tit 
shall  take  advantage  of  the  cauilitiou  without 
any   demand  ;  and  the  rcasan  there  given,  it, 
thnt  B  decorum  and  conveniencji  miglit  he  ob- 
n-ed.     So  it  is  iTot  beetling  li^  the  kiog  id 
person  to  arrest  any  man,  tiut  the  king  cokf 
commnnd  another  to  do  it.     BraclOn,  lib.  8. 
De  acquirendo  rerum  dominio,'  fol.  55.  says, 
That  llie  cninn  of  the  king  Is  to  do  justice  aiid 
jadgment,  and _/(i cere  ^«bi,  without  which  tbe 
'n  itself  cannot  aubslal.     Several  cimatmC^ 
)  are  to  be  made  up<ici  those  sevend  words; 
the  last  Hord)  '  facere  pacem'  imply,  that 
the  king  hath  a  coereive  power.     Britton  f.  1. 
mongst  the  Emrta.    Tlie  ting  said,  BecRUse 
'eHi«  notsafticientin  person  lo  do  erery  thing, 
e  divide   tlie  charge  into  mnn^  partg.    We 
re  the  people's  justice,  add   ajuatice  implies 
ne  that  bath  power  in  do  justice  in  every  kind, 
1  wit,  by  imprisotuoent,  or  otherwise,  HO  H.  T^ 
Coke  11,  as.  it  is  said,  lliai  the  king  is  tbe 
Chief- Justice.     And  Lambert,  Hi  his  Justice  of 
Peace,  fol,  3.  saya,  That  in  ancieoc  hittories, 
the  Chief' Justice  ofEtigland  is  cntled  '  Capi' 
cnlii  JasticiarluB  et  Prima  Juslicta,'  after  tbe 
king  in  England.     Sa  tiM  the  king  bath  tbe 
same  power  ofjustice,  as  he  chief-justice  had. 
This  impriBonnient  here,  which  is  before  coU- 
ctlon  for  any  offence,  is  not  nsefl  toward  the 
ibject  BS  imprisonment  for  any  fault,  but  k 
itner  «n  aiTeat  or  restfaiot  to  atold  fvther  iu- 
jnvenieacea,  14  H.  7,8.    A  jnstice  of  peaca 
may  arrest  iota  riotously  asscoibied,  for  pra- 
tention  of  farther  miKhlef.     And   tbe  Bobk 
sho  aaya,  That  he  may  leave  his  terraiiu  the>« 
rest  men,  for  saiesiiard  of  the  peace.    It 
MM  well  knowD,  that  if  a  house  lit-  let  on 
Sre,  every  man  may  pull  down  the  neit-  houstf, 
for  prerention    of  a    greater  mischief  (  *o  it  ' 
seems   concerning  the  incendiaries  of  statt, 
they  ought  to  be  restrained  and  supprest,  lett 
other!  should  be  atirred  up  by  them  to  the  same 
combustion,  33.  Aas.  96.   and  29  E.   4,  43.  iA 
false  imp riaonraent  thfe  defendant  justifies,  be- 
cause the  plaintiff  was  mad  and  out  of  hit  wits, 
and  thM  he  bad  done  some  harm,  end  that  ha 
had    boDtid    and   beat  him   lb   avoid  furtbtr 
harm,  «  hich  mitht  hnve  happened  by  bis  mad- 
ness ;  and  thejustification  was  held  good.     So 
ititin  matter  ofgotemmenl;  to  avoid  Commo- 
tions, the  king  ought  to  use  his  coercive^ power 
against  those  that  nre  etiriged.     The  olneclioH 
wia,  that  this  course  was  against  the  Petition 
of  Right.  But  I  answer,  That  thia  case  Is  out  of 
rhewnrdaof  that  Petition;  the  words  of  the 
Petition  were  "  Whereas  by  the  statute  called 
tfaeOrentCharter,Bndbythestaniteor28E.  3, 
no  freeman  may  he  taken  or  impriaoiled  ;'-yet 
against  the  leooor   of  ibe  adid  atatute,  Ac 
dirers  of  yonr  subjects  have  of  late  been  impri- 
aooeiJ,  without  anv  canae  shewed ;  and  wbeii  . 
for  tbeir  defivenuicc,  &c.  they  were  brought 
brfol^  thejusliftes  by  writs  ofHabeaa  Corpus, 
ttiere  to  undergo  and  receive  aathecourt  should 
Drier,  and  iheir  keepert  comniaiidcd  to  cFttH^ 


,,Goo^;lc 


«7]  STATE  TRIALS,  5  Cbakui  L  lG29.-~l'roctediig*  agaim  ffm.  Stroud,  aq.  [34S 

the  came  of  their  dnuner,  mod  no  cttDse  was 
ccrtiSed,  but  that  thry  were  detained  by  joor 
nifijestj'B  apecial  command,,  liguificd  bjr  ibe 
lords  oFyour  counciJ  ;  and  yet  were  returned 
back  to  se%'erB)  prifona,  without  bring  charged 
with  anj  thing  to  which  theif  miKhi  make  an*wer 
■ccordirig  to  law."  'ITieie  lost  words  ore  ob- 
•ervable,  <  without  being  chained  with  an^  ihbg 
*  to  obicblbej  might  make  aniwer:'  tliesewardi 
Aa  not  refer  to  the  return  of  the  Habeas  Cor- 
pus ;  for  tlie  cause  returned  therein  cannot  be 
Cravened,  9  II.  6,  54.  but  the  court  took  it  as 
true.  But  the  setting  fortli  of  ihe  cause,  and  tlie 
answer  to  the  same  cause,  is  to  be  upon  oiher 
proceedings,  to  wit,  upoo  the  indictment  for  the 
offence,  or  otherwise.  And  tliero  is  a  great 
difierence  between  the  return  of  a  writ  hi 
which  a  man  moj  answer,  and  die  return  of 
«n  Habeai  Corpus  10  E.  4,  and  3  H.  7,  11. 
are,  that  if  the  aberifF  return  Retcout,  all  cer- 
taiuties  of  every  circamstnnco  ought  lo  be 
afaened  ;  because  it  is  fitting,  that  a  thing  cer- 
tain  be  brought  into  judjinient.  And  upon 
shewing  of  the  grievance,  as  above,  the  pelitiou 
is,  that  no  freeman,  in  nnj  such  mnnner  as  be- 
£]re  is  mentioned  be  imprisoned  or  detained; 
auch,  and  it  hiilh  relation  lo  such  imprisonment, 
wliich  is  mentioned  in  the  premises.  And  impri- 
■oument  mentioned  in  theprenilseiof  the  ptii' 
tion,  is,  where  DO  cause  at  all  wasmeotioned; 
theo  where  any  cause  is  shewed,  is  out  of  the 
petition,  and  tliat  such  h  tlie  word  relative, 
appears  bj  Coke  li.  152.  where  man;  cases  are 
put  to  the  same  pnrpow,  wliich  see. 

The  third  Objection  vin,  Ihat  the  Reiaro 
was  general  and  uiicertsin.  Ihe  counsel  on 
the  other  side  liiid  divided  the  words  of  the  re- 
turn, but  tliat  is  10  offer  violence  thrreto;  for 


but   L. 

words, — ■  notable  contempts' — it  hatb  been 
•aid,  that  the  addition  of  the  wbrd  notable  is 
but  to  makes  fiourishi  Bmlsaj,  ThatnolaUe 
is  not  the  emphasis  of  the  return,  hut  it  only 
Mprcsseih  the  nature  of  the  otTence;  and  jei 
'notable'  is  a  nord  observable  by  itself  in  the 
law,  and  implies,  that  ibe  tiling  is  known  aad 
noted.  B/  27  E.  l,  iheriBs  shall  be  punished, 
that  let  notorious  offenders  tci  ball;  and  by  the 
■tatule  of  4  II.  4,  cap.  3,  a  notorious  or  com- 
mon thief  shiill  not  make  his  purgation :  and  36 
E.  3,  71.  in  a  trespass  for  false  imprisanment, 
the  defenduiit  snld.  That  the  plaintilT  came 
into  the  toxvn  of  Huntingtou,  and  because  he 
was  teen  in  the  company  of  R.  de  Tborby,  who 
was  a  notorious  ihief,  be,  ns  bailiff  of  Hunting- 
ton, took  him  upon  suspicion.  I  confess,  that 
— '  for  contempts' —  is  general,  yea,  it  is  genitt 
Mtaeraliiiimum,  and  within  the  Peiition'  of 
Right;  but  the  words  are,—- — '  ugaiost  our- 
'  self.'    It  hath  been  said,  that  this  might  be 

hj  irreverent  words  or  gestiirei. '  And  our 

'  Government' it  hath  been  snid,  that  this 

wight  be  by  contempt  to  the  kinE|s  writ,  or  by 
Retraxit,  as  Beccher's  case  is.  To  this  I  an- 
swer, thul  thost  words  which  are  spoken  to  one 
purpose,  ousht  not  to  be  wrested  to  another; 


tnd  this  is  against  the  conuoon  meaning  of  the 
words.  Coke  i.  Thou  art  a  murderer,  the  de- 
fendant shall  not  afterwards  explain  it  to  be  a 
murderer  of  hares,  for  the  highest  murder  is  iit- 
tended.     So  here,  the  highest  govenunent  ia 

4.  It  hath  been  objected  that '  for  slir- 

'  riTig  up  of  sedition  against  us' may  per- 

h.ips  be  but  an  offence  fineable;  bat  tboM 
wurds  joined  with  the  former  words,  shew  tbif 
tu  be  an  offence  of  the  highest  nature;  sedition 
is  a  special  contempt.  And  attbou^  sedition 
iu  itself  may  be  but  a  general  offence,  yet  here 

it  is, '  sedition  against  us  and  our  BoveriK 

*  inent' which  makes  it  particular.     It  hatb 

been  confessed  by  one,  that  argued  on-tbe  other 
side,  that  there  is  a  general  in  a  pafticular. 
Cote  4.  p,  75.  Holland's  r —  ■'■ —  '-  *' ■ 


e,  tberen 


the  state  ecctesiistical.  Thirdly,  Tbereismore 
particular,  as  tlie  colleges,  deans,  and  chapters. 
This  being  in  a  case  nf  return  up<m  Habeas 
Corpus,  uo  precise  certainly  is  required.  In 
an  indictment,  a  certainty  ot  all  circamstanco* 
is  requisite;  inpteading,!!  certainty  isrequired; 
in  counts,  a  more  precise  certainty  ;  in  bars,  n 

is  not  s\ich  precise  certainty  required  bcro  as  in 
iodictmeiit  or  count,  because  the  patty  ought 
tO'BDSwer  unto  them;  nor  so  much  certainly 
required  iu  this  as  in  a  bar.  And  the  return  ta 
not  incertain  ;  fur,  as  it  is  said  in  Plowdeu  SOS. 
and  193.  a  thing  is  ioceriain,  where  it  may  ba 
taken  indifferently  ooe  nay  or  tiie  other.  Bat 
where  the  intendment  the  one  way  exceeds  the 
intendment  the  other  way,  it  is  not  uocertaii^ 

as  it  is  here.    The  words  are, <  far  nolaU* 

*  contempts  against  us  and  nur  Government, 

'  and  for  stirring  up  of  sedition  against  ita.' 

Here  is  a  certainty  of  inteudment  one  way. 
There  are  many  writs  which  aro  more  uncertau) 
than  this  return  here  is,  and  yet  good.  Ill* 
Writ  concerning  the  taking  of  an  Apostate  i* 
general,  <  quod  spretii  habitn  ordinis  ;*  and  jet 
there  are  more  sorts  of  apotCacies.  In  the  writ 
concerning  tbe  amoving  of  a  leper,  the  worda 
are  general,  and  yet  it  appears  by  F.  N.  B.  that 
there  are  two  kinds  of  lepers,  one  outward,  and 
the  other  innitrd;  and  for  the  latter,  the  writ 
concerning  amoving  a  iepcr.  So  ihe  writs  coit> 
cernlng  ifie  burning  of  an  heretic,  and  coo- 
ceming  the  burning  of  an  ideot,  are  general  ■ 
and  yet  there  are  sundry  kinds  of  heretics  and 
ideots  also.  But  it  bath  been  objected,  thai 
Sedition  is  not  a  law-term,  nor  know'n  in  the 
law,  of  which  tbe  judges- can  take  no  notice; 
but  the  words  lo  express  oilences  of  this  natiu^ 
are  murder,  treason,  felony,  &c,  and  that  no  in- 
dictment of  sedition  generally  was  ever. seen. 
To  this  1  ansner,  perhaps  it  is  true,  that  no  in- 
dictment was  ever  seen  made,  because  the  form 
of  an  indictment  is  precise ;  words  o£  art  aia 
required  therein,  at  appears  in  Oyer  fit>,  361. 
Cote  4,  p.  39.  Vaults  case;  yet  in  5  E.  «, 
Djer  69.  itis  said,  that /araJniimpliaJc2ewr« 
'  '  gb  the  contrary  hath  been  o  ~  ' 
words  by  periphiui*  are  h 


„  Gooji^lc 


M91     STATE  TRIAi:^,  5  Chaklu  L  1020 and  mim,  on  an  Babau  Corfut.      [830  ' 

TbemmDt  ofajaMiceof  pe«c«  UiB)^nben<l 
J,  S.  becBue  of  prepeme  malice,  inttrfecU  J. 
D.  B  good  enoDgh,  although  there  wanti  the 
vgd  mardrmit.  In  5  K.  2.  F.  Trial  54. 
Bilka^  My»,  That  a  miscreBnt  ihall  forfeit  bji 
lud.  Out  of  which  it  mo;  be  gathered,  that  a 
■HP  nuT  he  iadicted  for  mucrenncj.  And  it 
mnu  liuwiie.  that  an  indictment  of  aeditioQ 
suj  be  good,  for  in  >ome  caset  it  is  treasoD. 
I  ifree,  Peake'i  case,  which  hath  been  objected, 
■kit  fiir  thcie  wordi  *  ledittom  iellow'  do  action 
lio^iiMt  wit  Coke  A- 19-  bec«u*e  those  words 
d*  ngt  inpon  an  aa  to  be  done,  but  mAj  an 
■dJBatioo  to  do  it;  but  if  a  man  saj  nich 
wuds  of  MM>tber,  whiGh  import  ll4at  he  htlb 
■ade  MdhMB,  ib«f  are  actionable,  as  it  wra 
ifulfediD  Pliilli|M'a  and  Badb^'a  caie,  34  Elia. 
C«ke  4.  19  •  Tboo  bait  made  a  tcditiooi  Ser- 
'■00,  and  moved  the  people  to  (edition  this 
■day,'  Btyn^ed  BCtionahl*.  So  in  the  lord 
Cramaatfa.  Coke  4.  18,  13.  Ac  actjon  woold 
ba*e  lain  for  tho*e  notAt,  '  You  like  of  those 
'  tku  main  tain  Mditiooagamit  the  queen's  pro- 
'ceedingt,'  if  then  bad  not  been  ajiotbrr  mat- 
Ki  ie  the  case.  I  agree,  the  case  of  81  E.  3. 
Sir  John  Garbvoi's  case,  and  *e  E.  3,  for  in 
tboM  case^  sedition  oaa  onlj  taken  ndjeetive- 
Ij,  and  ibein  an  indinatioo.only  to  do  a  ledi- 
boBi  act  i  Mid  in  tacl)  aeose,  sedition  may  be 
oplied  to  other  ofiencet  tban  (renson.  In  31 
£  1.  f,  Gard.  15T.  Gardein  in  Suc^e  made 
failiaeot  of  land  which  he  had  in  waH,  this  ii 
JMJeiture,  says  the  book,  for  the  treaaon  whieb 
le  did  to  the  ward ;  la  lbei«,  one  thing  it  called 
mnoD,  which  is  onljr  a  breaGh  of  trusC.  In  an 
apped  of  Mayhem,  it  is  ftlonici,  mid  yet  0  B. 
T.  1.  it  a  not  lekmy ;  but  felony  i*  there  only 
fat  to  eipms  the  heinousneM  of  the  t^Dce  ; 
It  is,  ai  it  were,  a  felony.  The  uatnte  of  3  H. 
4. 1  Uar.  13  Ela.  35  ^ii.  IT  R.  !i.  3  &  4  E.  6. 
14  Eltt.  which  have  been  objected,  hafe  the 
aord  •editkio,  but  oat  applicable  to  thii  case. 
Bncloa  in  his  book  de  Corona,  says,  *  si  quia,' 
fcc  If  any  by  rath  attempt,  plotting  tlje  king's 
death,  sboatd  act,  or  cause  any  to  act,  to  the 
Mfdon  of  the  lord  the  kin^  or  of  bii  aiiny,  it 
■  tMBion.  And  Glanvile,  m  as  many  words, 
Myi,  That  to'  do  any  tbinf  in  sedition  of  the 
knyloiil,  or  of  the  army,  is  b^h-tieeBon.  And 
BrittoD,  (bl.  16.  it  is  tugb-traasoD  to  disinherit 
iU  kisy  of  the  realm,  and  ledition  tendeth  to 
the  dinnhentance  of  the  king;  for,  as  it  hath 
ben  Mid, '  Seditio  est  quasi  saotMim  itio,'  wfaeii 
ikepeaple  are  severed  from  the  kingi  or  it  is, 
'Ss^anos  i  ditione,'  wben  the  p*Q|i)*  are 
Kfcnd  from  the  power  of  the  kioc.  And  in 
teieaw  sedition  ia  do  stranger  m  nor  law; 
ud  mck  sedition  whicfa  men  the  people  Jrom 
dc  bs^  is  tr«a*on.    - 

Btu  It  bath  been  objected.  That  by  the  sia- 
■Ms  of  35  E.  3,  the  parliament  ongbt  only  to 
tennine  what  is  treason,  what  not.  To  this 
I  uNwer,  That  opcm  the  said  statute,  the  posi- 
Im  law  b^  always  made  ezplicstion  ud  espoai- 
Dob.  Br.  Treawtn  M,  the  words  are '  Compass 
|Driasgitiethede«thof  tbekins;'  and^reit 
u  takaa,  (b»  be  tlwt  malidmii^  denieth  bow 


tbe  king  may  come  to  death,  by  word*  or  odtei^ 
wise,  and  does  not  act  lo  eipUio  it.  ni,  in  as- 
saying bamess,  this  is  treason.  13  £1.  Dy.  9(% 
Doctor  Story's  case,  he  being  beyond  sea,  prac- 
tised with  a/oreign  prince  to  invade  the  iMln>, 
and  held  treason,  because  invasiou  is  to  tbe 
peril  of  the  prince,  Bnd~so  within  the  itatnte  of 
fi4  £.  3,  Mar.  Dy.  144.  The  taking  6r  the 
csstle  of  Scarborough  wos  treason  in  Stafford, 
by  30  Ass.  p.- 19,  whicb  nns  presently  after  th« 
makingof  tbeBlBtuteoftS£.  3.  A  man  ought 
to  hare  been  banged  and  drawn,  that  brought 
letten  of  eicommensemeul  from  the  pope,  and 
published  tkon  in  Eogland ;  and  it  is  to  b« 
noted,  that  at  Che  same  time  there  was  no  sta- 
tute to  make  it  oeaion,  but  Dpen  construction 
of  tbe  said  statute  of  tS  E.  3,  though  now  i« 
bemade  treason  by  tlie  statute  of  13  Elii.  if  it 
he  with  intention  to  advance  foreign  power: 
Peihaps  the  sedition  meutioned  in  ihii  return 
ii  high  treason ;  and  yet  tbe  king  may  make  it 
an  ofence  finable,  for  he  may  prnsecute  tlw 
offender  in  what  coune  hepleasetb;  and  if  it 
be  treasnn,  then  the  priaoners  are  not  bailable  - 
by  tbe  itatute  of  Westminster.  But,  luppose 
Mat  it  is  but  a  finable  o9ence,  yet  by  tiie  said 
statute,  thaie  wbo  are  imprisoned  for  open  and 
notorious  naugbtiness,  shall  not  be  hailed ;  the 
nme  naughtiness  is  there  intended  high  aad 
eigrhitant  offence. 

3,  It  ii  Rt  lo  restrain  the  piisoners  of  their 
liberty,  that  the  cmuoion-weallh  be  not  damni* 
fied.  It  is  lawlul  to  pull  down  a  bouse  to  pre- 
vent the  spreading  mischief  of  fire ;  it  ii  lawfttl 
to  reitrain  a  furious  man.  And  by  the  14  H, 
T,  a  justice  of  peace  may  rettrain  a  rout.  Tbeit 
the  restraint  of  dangerous  men  io  the  common- 
wealth ia  justifiable  and  neceiiary.  34  E.  3, 
38.  p.  95.  sir  Tbomns.Figet  went  armed  in  tbe 
palace,  which  was  shewed  to  tbe  blip's  council ; 
wherefore  he  was  taken  and  iliiuriiied  befors 
the  chief-jusdce,  and  cominitted  to  the  prison, 
and  be  could  not  be  bailed  till  the  king  sent 
his  pleasure;  and  yet  it  was  ihcwed,  ibat  the 
loid  of  T.  threatened  him.  Out  of  which  cbs« 
I  observe  two  things:  1.  That  tbe  judge  of 
this  court  did  cause  a  man  to  be  sppriheoded, 
upon  complaint  made  to  the  council,  that  is, 
10  the  lords  of  ihe  privy-council.  3.  That  al- 
though he  did  notliing,  he  is  not  main  emable 
until  tbe  king  sent  his  pleasure,  because  he  was 
armed  andfurioiudydisposed.  So  here.  Where- 
fore I  prey,  that  the  prisoners  mty  be  sent  back 
again, 

DownpDrl  argued  to  tbe  same  intent  and 
parpo^e,  and  therefore  I  will  report  his  orgo- 
ment  briefly. 

1 ,  He  anid.  That  the  return  hov  is  sufficient. 
The  counsel  on  tlie  other  side  have  mode  trao 
tions  of  this  retarn,  and  diviiled  it  into  several 
parts,  whereas  the  genuine  construction  ought 
to  have  been  made  upon  the  entire  return ;  for 
no  Tiolenca  onriit  lo  he  odeicd  to  tbe  text,  f 
£.  4,90.  InG^ imprisonment,  iheddendant 
did  Justify,  and  alletked  •everal  reasons  of  hb 
wit,  becauH  a  awn  w  M  kiUeil, 


jmtjfiaidoo;  to  wit,  bi 


CM]  STAT£TRUt£,  sCm^fajni.  I«i30. 

and  thai,  tin*  wm  w  ([-.e  eoniAgi  of  S.  Biid  lint 
Ae  commoo  voice  uid  fsMe  waa  .ttmC  the 
ptobiliff  ivus  culp«Ue.  Aod  tlus  mi  held  n 
eiud  plee,  althoQgti  Biynn  did  there  object, , 
JhM  the  plea  vai  double  or  trable;  aod  the  ' 
KKSoa  waa,  because  twentj  cana  of  sosfiidon  . 
towke  but  sne  entire  catue;  and  indivisiMe 
luiity  in  tlii»  ou|;ht  not  to  be  divided :  lo  Cuke 
S,  M.  Crogate'i  cue.  In  an  action  ef  tret- 
)nu,  the  defeudant  jaitifiu  tbr  Mvend  cause*, 
■nd  keld  goad,.becaiue  iipon  tlkc  mailer,  all  of 
tiKB  adce  iuit  one  caote.  Coke  S.  1.  IT,  It 
M  «nid.  That  it  is  aa  aajoM  thing,  unlesi  the 
mrhoit  Iftw  be  looked  ino,  to  jud^  and  BDswer, 
kj  pntpoundiD^  anj  one  panicnlsr  (hereof^ 
and  tf .  il  be  anjiMt  in  the  exposition  of  a  law, 
it  i«  uncivil  in  a  reOini  to  make  fractions  of  it ; 
in  the  conttniction  ihereof  etpeciallj,  it  being 
a  return  tbr  infomMioB,  sod  notforaccuiation, 
S.  AltlHiUKh  the  couasei  on  the  other  side 
hare  tat«n  thit  caie  to  bo  nithia  ibc  Peiidon 
of  Higbt,  ;ct  this  ia  Petitio  primipii,  to  tak« 
tliat  lor  granted  which  ii  ihe  question  in  debate. 
^  He  said.  That  be  wouM  not  o&r  notence  (o 
'  die  Petitlou  of  Ki^  to  which  the  king  had 
asKOted,  and  which  ahall  realty  be  perfonbed. 


•aid  statute. 

S.  He  Slid,  That  diii  wai  the  actual  commit- 
mmt  of  the  lords  of  the  prtr^-cduncil,  and  the 
habitual  or  virtual  commitaietit  of  ibe  king. 
£fiut  b«c«|UM  upon  these  two  maltw*  h«  pat 
m  case,  not  gave  anv  reaion,  but  whM  had 
beeo  put  or  giren  ia  tfae  argutneat  of  the  fmul 
Habeas  Corpus,  Midi.  3  Caroli',  and  aflertrards 
in  the  hoase  of  coianwins,  (vide  page  5(>,  tec. 
■ate)  which  »u  reported  to  the  lords  in  liic 
painted  cbaiobcr,  I  hire  bere  omitted  theai.) 
And  for  the  great  rcvpcct  which  the  law  nrftt 
to  ibe  commands  of  the  king,  he  pot  umm 
cases :  7  H.  S,  attadiment,af  waiu  against  lb* 
tenant  in  dower,  and  the  waste  wai  uiignad 
d  the 


of  die  k)rd  the  king,  took  all  the  Bsh  ant  of  the 
■aid  pond  to  the  use  of  the  lnlll  the  ting,  and 
lield  a  good  junificatitn  ;  wtnrh  provea,  that 
&t  oommand  of  ibe  kins  tli«re  to  ber  husband, 
excased  her  of  tha  said  waste.  And  jet  it  is 
clear,  that  a  tenant  in  dowctis  Halite  to  an  actioa 
of  H'Bste,  for  waste  done  ia  the  time  of  her 
second  husband :  but  coatisrj  is  it,  where  a 
womnn  is  tenant  for  life,  and  took  a  husband, 
It  ho  made  wnste  and  died,  no  action  lies  against 
die  wife  for  that  watte.  And  F.  N.  B.  IT  A. 
If  the  tenant  inpr^pi  at  the  faaJ  mip€  make* 
fchafa,  the  king  may  tend  mrriito -the  jwtWM, 
rehtarsing  that  ne  wat  ia  hit  tervica,  sc.  com* 
Mandkig  Ibtco,  that  that  dalMt  ha  not  pre* 
jndidal  to  him ;  aad  tbil  oomataBd  of  tha  king 


■   4.  For  Ibe  paiticrian  of  theritan,  it  it— 
*  famoiiMawiiirwptiapiaiithiaBtiiMaii^ 


. — PnxMa^agaiBSt  Wm.  Slroad,  ag.  [US 

— Ixitatto  that,  it  bath  been  laid,  that  the 
king  hath  sondt^  governments,  to  wit,  «c<leit- 
ratical,  political,  &c.  and  it  is  nM  ibcwn  agaioM 
which  of  thnn.  This  it  but  a  ornltiag  eiccp- 
tioB ;  tiitj  Bight  at  watt  htva  excepted  to  ttna 
reUMi,  becHue  it  it  not  tbewn,  tli>t  these  coa- 
t^tptaweK*fierdKkutgenei«l  pardon;  that 
had  been  «  better  ncf[FtiMi.  The  hut  ^ord* 
of  the  rerarnaie,— '  raiang  sedition  apinttBt^ 
—but  Bi  to  this,  it  bat  bean  said,  lliat  tJilit  h 
not  a  wont  knowa  m  the  law,  ib4  is  a]*fg% 
lakaa  eitlter  Bdverbiallj,  or  adjectivelf ,  and  ia 
not  a  tubitantive.  Toihishiia>d,ihatalth«i:^ 
it  is  not  aintHtantiv*  for  (he  preseiiatieit,  j«t 
it  it  a  tubstantiva  Ibr  the  ctanruction  of  a  king- 
dom. And  he  said,  that  Itt  fcuad  the  word  a^ 
iifw  in  the  low,  as!  the^^nteqiient  of  it  likew. 
wise,  wUch  is  Mlacti*  fvapafi.  Bat  it  it  not 
ever  fotmd  to  be  takan  <iD  a  p>od  tease,  it  is 
alwiiff  iHnhed  and  caapted  *itn  irtnion,  rebeT- 
lioo,  iutai'm-Uusi,  ar  tucfa  Ifte,  as  it  appMta  b* 
all  tbcae  tuMatM  itldch  h»v«  bean  laiaenbared 
on  tbeoihar  nde.  ThatafoR  he  pnjtd  that 
the  PriHmtrt  a^t  be  aent  back. 

2Via.  iC<ir.I.lLR. 

Tbe  6i«t  da;  of  the  Term,  upon  Haheai  Cor- 
pus to  sir  Allm  Aptley,  the  I^aiienant  of  tfae 
Toner,  to  bring  here  ihe  bod;  of  Jobo  Selden, 
etq.  with  the  cauM  of  detetitlon ;  be  retsmed 
the  iBia*  cause  at  in  Mr.  Stroud'i  case :  and 
&Ir.  Littleton  (aftenrardt  sir  Edward,  and  Chref 
JnsticM  of  tfae  Comau)ii  Pleat,  and  Keeper  af 
tha  Great  Seal)  of  couniel  with  him  move4. 
Hist  the  Itetura  wat  intafitcient  in  tehttaace  ; 
■itereloTe  ha  prt]|ed  that  ha  might  be  bailetl. 
It  It  trac,  that  it  is  of  great  omnpiem:*,  botfc 
to  the  crown  of  the  kine,  and  to  tlie  Libertv  of 
tfae  Snlject.  Bat,  under  favour,  for  tlie  din- 
cully  of  law  colRaihed  to  it,  the  cat*  cannot  bfc 
calltd  grand.  In  my  afgunteiit«  I  will  alfiH-  ■«- 
tUng  to  the  cann,  bat  tntt  which  I  have  seek 
with  these  eyet,  and  thai  which  in  aiy  BBdei>- 
Btanding  (winch  is  vadi  sabject  to  mittakea) 
can  receive  no  tafitaent  aaswer. 

I  will  divide  bit  arBBment  into  four  levend 
Iletidtt 

1.  To  pain 
aaneceiaary,  i 
in  qaetlion. 

8.  I  wilt  coatider  the  Warrant  of  the  Pnrf 
CoDncit  hi  this  caae. 

9.  The  Warranieflhekinibiiatelf. 

4.  Tfae  Ofajaatiom  wbioh  have  beta  mad*  b» 
the  oomrtBT  iMe,  tbe  strength  of  them,  anil 
give  antwet'ta  them. 

For  fbe  Gnt  of  theta  heads,  1.  I  wSI  adnit, 
thu  Ike  kieg  tawr  tsatanit  a  maa.  3.  That  a 
man  committed  b;  tbe  king  it  not  reptevitaMe 
by  tbe  therir,  but  ha  i*  btuIaMe  by  this  oonrt, 
notwithitaading  thattatBte  of  WetiM.  1,  c.  15. 
Am)  that  h*  shall  not  be  bailable,  it  ^inn  ibc 
Petitiatt  of  Right;  I  will  not  dispute  it,  for  il  i* 
eMahMted  by  iha  Aatiiet  of  tbeking  to  lite  taid 
Petitioa.  AodlheargMiieatsnadetalhispatii- 
the  said  pariiuneBi,  aad  in  the  Ftiate^l 


MeMthe 
ehuthetiK 


fiS]    STAYbTEIAIS.  iCaAtLL»lAM»^-^n4»Am,oKaaIIabattCotpn.     [SM 


to  whieb  erenr  on*  nwif  reiorC 

Uui  1  BUI  M^  n  ■  grouDd  of  mj  fbli'iowin;  u- 
ffovt,  ifaMm  offeBces  an  of  (iro  natarei, 
[^litd,  or  m  treqielKa  ;  >o  th^j  arc  panisbc  J 
ii  tiro  rnDDcra,  lo  wit,  CBvAoUy,  or  by  fine, 
wivpriwaiaenC-  Bra  tbc  uBeuce*  of  the  first 
aiMR,  ■■  TreuoH,  and  tfaa  tike,  impn- 
HMKnl  id  impoMd  upon  ttw  ofieniler,  onl; 

;    but  for  miicicnMaDors  of   ihe 

mpoietl  upon 

L  Tbtn  this,  m  nj  ground, 

1  tbat  B  imprisoned,  onlif  for 

■  bafvrit  cofiviction,  loajf  be  de- 
PBcd  »  priua  irichont  bail,  if  it  be  oSerad, 
^w  it  bs  in  mhbc  paiticular  caws,  in  whicb 
il('Caatrar7  i«  ordaiiwd  bj  taji  puticuliir  bib- 

(.  For  ttw  Wwrant  of  tbe  Pri*;  Council, 
■Aicbsgnifits  tlicplauureof  til*  king  to  con-^ 
mk  the  prisoner ;  pcrhapt  ttlia  oas  a  good 
foni  of  the  coraButocnt,  bnt  it  is  no  ground 
Jar  iht  detaining  uf  the  prisonar  wiltiuot  IhuI  ; 
MJ  tba  the  king  himself  hath  aoknrrwtedgad,  08 
da  ucient  right  of  the  rahject,  in  tbe  PetitiiHi 
i^Kight;  wlierefareitisnMnDii' lo  be  dttpuled. 
3.  Fur  (be  Wiu-rant  of  tbe  king,  as  it  is  car- 
lifed  hf  Om  R*tam,  thare  ii  not  an;  tufficient 
,  wae  contained  witUn  it,  IbrttiedctuiHii  '' 
ibt  priiaiMr  in  prisaii;  ibr  tba  lavr  being, 
hra  declared  above,  that  for  a  tniwltincaDor 
bMw  caneicDan,  no  frteman  nm^  be  iimpn- 
xwd  before  conuerion,  nithout  biut  or  pibid- 
pK,  tbcst^.qDestioa  noW  i^  if  tbi*  return 
MWain  mitluB  it  anj  capital  offcoce ;  or  if  onij 
tmmat  or  luwieHMBitor,  and  tlien  tlfe  part] 
a  btilMile  :  and  1^  the  dimaiiilion  hereof,  1 
■iU  coAwlCT  tbe  Return-,  1.  Ae  ic  ia  divided  ii 
Mwial  pBTU :  3.  1  wiU  ccmtder  all  those  pnrts 
of  i(  tegether.  ],  As  it  is  tetvrcd-  in  puns. 
Tie  first  part  of  it,  '  for  notable  coniempts  bj 
'  bin>  cimnutted  against  oor«etf  andoor  gaveni- 
'aeni.'  For  '  cowetopta,'  ell  conteDipts  are 
ifiiDfi  tile  Icing,  nudiatetf,  or  immediately, 
■Bd  agaiust  his  government.  '  Nultble,'  tbii  is 
d  one  nilh  notoriam  and  maHifeM,  as  nppesrs 
^llwMatateofWcstm.  1,  c.  19,  and  iaE.», 
Ii,  vhich  batb  been  remembered.  And  '  no- 
■■Me'ittiDt  an- enplutlicBt  expreasion  ef  the 
Mweof  tbe  tbing,  and  alters  it  not.  'Against 
la,'  iU  riots,  ronis,  batteries,  and  trespRsses, 
■e  against  ua,  and  aninat  our  crown  anif 
tpilj;  contempt  againat  our  coutt  of  jus- 
tica  IS  &  contempt  agninst  us.  But  If  (he 
Brtura  were  made  hete,  that  he  was  con»- 
Wlad  (or  a  coatempt  mBrie-  in  Chancerv, 
t^  jwiv  ihalt  be  bailed,  aa  it  was  resolved 
is  tlus  Court  in  Michael  Apsley^  case,  and 
in  Rmweira  caie,  13  jacobi,  for  (be  retorn  is 
IM  gtBeral.  In  it  tbe  nature  of  iIib.  oflence 
N^t  to  be  expresaed,  that  ihe  court  may  jodge 
tmof.  And  '  coniempts'  liere  itvtdimitutiiii 
■Bgta .-  tberafqie  fo>-  (bemt  hetoft  coaviction, 
■W  paror  cannot  be  imprisoned  withont  bail  or 
■aioprize. 

The  aacond  putt  of  the  Return  is  '  and  for 
'Nuriitg  up  of  Sedition  ngainat  US:'  tbe  other 
«li  Mid,  TUbwdill*  i*  «««r  Uken  in  ibe  iM«e 


I;  that  is  trne.     But  hence  it  fellow»DMt 

the  party  that  coiO'nTts  it  is  not  boUablr. 
Every  small  offeoce  is  taken  in  tbe  wont  sense, 
a*  (lie  stealing  df  nn  npple,  and  the  like ;  bnt 
such  bind  of  oQenders  atialt  not  be  cammicied 
without  boil.  To  eiamine  Che  natlire  of  Ihia 
offence,  which  is  called  ■  sedition,'  it  ought  to 
be  understood,  as  tliis  Return  is,  either  as  ires- 
posB,  or  as  H^  Treaaon  ;  for  it  cannot  be  in- 
tended to  ba  Petty  Tr^astin,  for  Petty  Trcft- 
son  is  Ml  called  in  nspect  of  the  oltnce 
done  to  any  panicidBr  subject ;  but  in  respect 
of  the  hing^  it  is  but  as  a  Pelony,  therefore 
the  iDdictmiats  for  the  aaine  are  felanioesly 
aod  traitotondy.  And  here  the  words  are, 
'  sedilioB  against  u* ;'  so  of  necessity  it 
ought  to  be  intended  of  an  offence,  that  more 
itDmcdiaCely  concenis  (he  same  litiig.  For  the 
diicusMHC  of  this  matter, 

1.  I  will  conaider  in  whet  senK  and  Mgntfict^ 
tioQ  lbi«  word  ndilio  is-  used. 

S.  How  it  shall  be  expounded  here  by  rela- 
tion iliereof  to  the  king. 

3.  W hat ainse these Honh 'against  us,' ilwll 
have  here. 

1.  For  Sedition ;  ii  t*  not  found  in  the  di- 
vision of  oSesceB  in  our  law,  bnt  at  it  h  min- 
glad  and  coupled  with  other  offences.  No  in- 
dictment of  aeAtian  only  wm-  ever  seen,  rtor 
can  be  abewn;  roatt.  Hots,  and  nnlawtnl-ossf  m- 
bliee,  are  munb  of  the  iinne  nature  with  it,  and 
d«  well  eipresB  the  nature  of  sedition.  The 
Enebah  word  is  dhiws  from  the  word'  leditio 
in  Laein,  aud  the  dterivalion  of  it  is,  as  hnth 
beaa  observed,  senjin,  or  uonum  itio ;  atld  the 
seditiout,  as  one  says,  take  a  diversion  and 
draw  otbers :  it  is  used  in  the  Bible,  in  poeta, 
hiitiirieat  and  orators,  for  tumult,  or  hurly- 
burly,  or  uproar,  or  euofosed  noiw, — '  Seditio- 
'  que  receoa  dabioque  sosurro,'  in  Liv.  lib.  3. 
cap.  44.  Aiid  in  Tacitus  it  is  taken  for  mutiny 
in  an  army,  when  the  army  is  always  repining 
nt  the  captain.  In  the  Italian  Isngua^,  which 
is  ihe  elder  son  of  Luiin,  sedition  and  discord 
is  all  one.  Numb.  caff.  M,  3,  the  Latin  tran»- 
ladoQ  is,  '  Ver«i  in  sediiioiie;'  the  En^ish  i«, 
'  chode,'  or  '  murmured.'  Numb.  86,  9,  the 
Latin  i", '  In  seditione  Corah ;'  the  English  is, 
'  In  the  Companr  of  Corah.'  Numb,  if,  S, 
the  Latin  is,  *  Ncc  fait  in  seditione  eorum;' 
tbe  English  is,  '  in  ihe  company  or  assembly  of 
ilwm.'  Judg.  12.  1,  the  Latin  translation  is, 
'  Facta  Mt  eigo  seditio  in  Ephraim  ;'  the 
Englibh  translation  is,  '  Tbe  men  of  Ephraim 

Sithered  themselves  together.'  In  the  New 
cstament,  Acts  19,  40.  Seditio  in  the  La- 
tin is  iranriated  '  Brroar'  or  '  meethiB.'  Atf 
15,  2.  '  Facta  est  ergo  seditio,'  &c.  and 
it  is  tranttated  '  diisension'  and  *  di'spocaf 
'  tion.'  Aets  84.  5,  TertuHus  the  Omtor 
accnaeth  Paul  for  nioving  sedititni ;  atid  tliQ 
subseoaent word*  are,  ' A  ringleader  of  the 
seot  of  the' Pharisees ;'  so  that  his  sedition  there 
was  bnt  a  »chisnt :  and  the  words  there  are  in  a 
inannet  the  retj  same  with  out's  ben ;  then  it 
was,  ■  for  moving ;'  btfre, '  tor  attrring  of  Sedi- 
tion.'    Siiilio,-  a*  ao  apprared  ainfaoT  aj«', 


t5&]  STATE  TRIAI£,  5  Charls*  L  lesa^—Pnceedingt  agaiiul  Wm.  Stnmd,  aq.  [Uti 

imporU  diKordiam,  [o-wit,  when  die  memban 
of  one  bod;  £glit  BgainU  aootber.  Tlie  lord  of 
St.  Albsrii,  who  was  lately  the  Lord-ChRiicellor 
of  En^nd,  and  wm  a  Uwyer  and  great  >[Mes- 
maD  likewise,  uad  well  knew  the  accputioii  of 
this  word  <  >edi[lDD'  in  uur  law,  halh  madean 
essBi  of  wdiiion,  end  the  title  of  ihe  essay  is, 
*  Of  Seditions  and  Tumults;'  ihe  wbole  essay 
tleaerres  tbe  readiag.  (See  3  Bacon's  Works, 
Seu.)  And  there  is  a  Prayer  in  llie  Litany,— 
'  from  Sedition  and  Heresy,  &c.'  bo  tliut  iiere 
■edition  is  uken  as  a'kiild  of  sect. 


t  labour  sliall  be 
any  thing  In  our  Law  cross  tliis  expaiitton. 
And  it  saems  clearly,  that  there  is  not,  3  H.  4, 
B.  15.  And  it  is  b  the  Parkiametit-roll,  d.  46, 
Bj^nst  Lollards,  who  at  tbfit  thtie  were  taken 
as  hereUt:s,nad  lays.  That  sucli  preachers  which 
excite  and  Kir  up  to  sedition,  shall  beconventad 
before  the  Ordinary,  &;c.  There,  sedition  is 
taken  for  dissension  and  division  in  docirine. 
And  tills  is  not  made  Traason  by  the  said  sta- 
tute, although  tbe  said  statute  be  now  reiieoled 
fay  the  statute  of  35  H.  8,  c.  4,  1  and  9  Piiil. 
&  Mar.  c.  3,  which  ij  in  Rastal,  News  4,  which 
i*  an  act  ^ainM  seditious  word*  and  news  of 
tbe  king  and  quMn,  which  is  a  great  misde- 
meanor ;  and  yet  tha  punishment  appointed  to 
t>a  indicted  by  th«  lajd  uatuie,  is  but  the 
pillory,  or  a  fine  of  1001.  And  the  said  sUiute 
by  the  uatute  of  I  Elia.  c  16,  was  extended  to 
her  olao,  which  statute  now  by  bar  death  is  ex~ 
pLTed  :  which  I  pray  may  be  obtened,  1 S  Elii. 
cap.  1,  aeaiDst  than  who  seditiously  publish 
who  are  iba  true  beirs  of  tbe  crown,  tlut  they 
■hnll  be  inuKisoaed  for  a  year,  &c  And  13 
^iz.  c.  S,  theseililioas  brinning  in  of  the  pope's 
btiUs  i*  made  treason,  wluch  implies,  that  it 
was  not  so  at  tbe  common  law.  23  Eliz.  c.  3. 
If  any  persoa  shall  devise,  write,  or  print  aqj 
book,  containing  any  false,  seditious  and  slnti- 
derous  matter,  (o  the  stirring  np  or  moving  of 
any  rebeUion,  Ike,  evtrj  such  oSence  shall  bo 
judged  felony.  And  in  an  ladictment  upon  the 
laid  statute  (which  see  Cuke's  Entries,  f.  35S, 
353.)  there  are  the  words—'  rebellionem  et  se- 
ditionem  morere;'  and  yet  it  is  but  felony,  35 
Elii.  c.  1,  miide  against  seditious  sectaries. 
Also  there  are  certain  Books  and  Aullioriiies  in 
law,  which  express  the  nature  of  (he  word  se- 
dition. Cuke's  4  Ilep,  p.  13,  [he.lord  Cromwell's 
Case.  In  an  action  lor  those  words  ['  you  like 
■  of  those  that  luaintun  seditions  against  the 
'  queen's  proceedinis'j  the  defendant  pleaded, 
Thatiie  intended  the  maintenance  of^  a  sedi- 
tious sennon;  and  this  was  adjudged  a  good 
plea  and  justlEcatloo.  From  which  it  fuUows, 
that  the  seditious  sennon  mentioned  in  the  de- 
claration, and  the  maintaining  of  sedition  against 
die  queen,  is  all  of  one  signilicatlon ;  for  if 
they  might  haie  been  tak&i  in  a  diSerent  sense, 
the  justilicalion  had  not  been  good.  Philips 
and  Badby's  case,  which  is  in  Coke's  4  Rtu. 
p.  19,  a,  which  was  olijected  by  se^eant  Berk- 
ley, makea  strongly  for  me  ;  far  there  an  action 
Upon  the  cue  nai  brought  by  a  person  for 


those  words,  '  Thou  hast  made  a  sedilims  Nr> 
'  mon,  and  moced  the  people  to  ledition  this 
<  day,'  And  nlihough  it  were  there  adja>lgad, 
that  the  action  lay,  y(t  the  renion  of  the  Judg- 
meut  is  observable,  which  was,  because  tbe 
words  scondaiiie  tb«  plaintiff  in  his  profesikm ; 
which  iiu^v,  tluit  if  they  had  not  scandaltied' 
bill)  in  hii  ptofetsioD,  no  action  would  kite 
Inin.  And  ordinary  w<.rds,  if  ihcy  scandalliei 
iKian  in  tt>  piolesMua,  are  actionable;  «t  to 
say  to  «  Judge,  that  he  is  a  oirrupt  mas ;  or  to 
'a  Merchant,  that  be  is  «  bankrupt;  allbonghif 
tliey  were  spoken  to  another  man,  tiley  wookl 
not  liear  anactini.  Ami  aliliiiugh  tlia  Book 
say,  that  no  <ct  followed  there;  vet  If  the  nat- 
ter objected  liad  been  ireason,  the  very  nil! 
had. been  punlh.ible,  and,  by  consequence,  a 
great  slander.  But  It  is  ohairrved,  that  wonls 
which  imply  an  iDciti>atii>n  unW  tn  sedition,  are 
not  actionable,  as  '  seditious  knnve;'  but  iudl- 
nntion  to  treason  is  treason,  therefore  words 
wluch  imply  it  are  actionable.  And  also  foi 
divers  words  an  action  upon  the  cnse  will  lie, 
which  induce  not  treftson  or  telony ;  as  Gic 
calling  a  woman  wbore,  by  wliicli  six  loaeth 
her  marriage,  and  such  like.  Then  seditina  is 
no  oRence  in  Itself,  but  the  aggravation  of  an 
oSence ;  and  no  indictment,  as  I  hare  said 
afore,  was  ever  seen  of  this  singly  by  itself.  THn. 
21  E.  3,  r<^t.  S3.  Sir  John  Garbut's  caM,  which 
was  ptit  bcfirre  by  Air.  Mason;  the  indicunest 
was  in  prejudice  of  bis  crown,  and  in  manitot 
sedition ;  and  yet  the  ofietice  there  wis  bat 
a  robbery.  It  is  true,  that  upon  hii  amu^ 
ment  he  stood  mute,  thereforo  tbe  Roll  is,  that 
he  was  put  to  penance,  that  is,  lo  etrong  aoit 
liardpain;uid  this  proves,  that  it  was  not  Trts- 
son  i  for  if  a  man  arraigned  of  treason  itaod 
mute,  yet  the  usual  judcinent  of  treason  siail 
be  given  on  him.  And  it  is  true  also,  tl«t  he 
cannot  have  his  cletvy,  because  intitUalar  mt- 
mm  was , in  ihe  indictment;  wbich  if  it  was, 
outs  the  party  of  its  cler)ry,  until  the  Statute  of 
4  IL  4,  c.  S,  US  is  observed  in  Coke's'!!  Rep. 
p.  39.  Aleiander  Poultcr's  Case.'  And  upon 
the  same  UoU  of  31  £.  3,  tliere  are  IburDtlier 
indictments  of  the  same  nature,  where  trdili- 
ati  is  contained  in  them.  AncKi  1585.  Qumd 
Elizabeth  sent  a  Letter,  which  I  have  leen,  by 
the  hands  of  Ihe  noble  anliquary  sir  KoUit 
Cotton,  to  the  mayor  of  London,  for  the  sup- 
pressiog  of  divers  seditious  Libels  uhicli  were 
published  against  her  princely  government; 
and  yet  in  the  conclusion  of  the  Letter  it  ip- 

Girs,  that  they. were  only  against  the  earl  of 
iceacer,  and  diis  was  to  be  puUljhed  oaly  by 
proclnmation  in  London. 

5H.  4,  m.  ll.Bud.13,  theenrlnf  Northnm- 
berland  preferred  a  Petition  to  tbe  king  in  par- 
liament,  in  which  he  cootessetb,  that  he  Md 
not  kept  his  majesty's  laws  as  a  liege  subject ; 
and  alio  confesseib  the  gathering  of  power,  and 
tbe  givinK  of  liberties:  wlierefore  he  petiiiwied 
the  worJiipofthe  king  (for  so  are  tiie  •rords) 
for  his  grace.  The  ktoe,  upon  this  Petition, 
deinamlM  tbe  opinion  of  tbe  lonb  of  parha- 
tdent,  and  of  the  judgef  ■iiiihint,  if  aoj  tbof 

Goo;;lc 


H7]   SFATETUAXS,  iCuAKMl  \92»,—Mdcilkri,enmHaiea»Corpia.     [3S9 


ewUiaad  wnbia  tbe  uid  Petitiin  ««ni  tren- 
MD,  M  so-;  Bnil  it  was  reiolvvd  by  tlitm  a)), 
ihu  notting,  a*  it  is  inaitir>ni;d  in  tiie  ^hliI  IV 
titiaD,  mw  Ti«Bs«H,  but  great  MinlemeaDnn ; 
mJjBlinilT.  Ihough  not  fjllj  there  inemioiicd, 
it  wM  ■  fttM  reb^ioQ  and  inBuriectiQn.  But 
tirf  (djudfjed  iccording  to  ihe  inid  |ietiuoii,  na 
jmi  an  now  in  judRe  upon  ilie  Kelarn  as  it  is 
■wta  lisie.  Id  Uich.  3S  Eliz.  Caivdrj's  Cnsr, 
Cob'i  Sftb  Report,  p.  1.  Sfditiun  and  Schism 
re  itKfiiitd;  ai  Scliism  is  a  sepsrnlioii  from 


ijof  liia  Church,  to  Sedili 


•'Ff 


ntico  froB  the  aaitj  of  the  Common wrBlih. 
ltd  an  Author  says.  That  ■  teditiaus  person 
i&n  from  a  schismatic,  becanse  the  one  op- 
fSKtfa  the  ^iritnal  troth,  -the  ether  the  leni- 
Mnli  andasScbtiTnof  iisell'i*  not  Heresy,  sn 
Stdin«D  without  other  lu^uncts  is  Lot  Treason, 
facton,  r.  112,  IIS,  118.  hath  been  objected, 
itat  be  makes  sedition  trvnon  :  I  will  grant  to 
lifm,  Hcngh^ni  alan,  wbo  is  tn  the  smne  pur- 
foss :  far  ill  those  Dot^s  it  is  callt-d,  ■  Seditia 
'regiiet  ragni,'  To  ibeoi  I  answer,  1.  Thnt 
ikef  ars  fthuere.  For  what  signified  ■  sedttio 
'iegii,'or  'lumnltas  regis  f  Shall  it  b«  the 
BBe  thini  in  sense  with  '  seditio  contra  re- 
'tm}'  It  seen>rlhat  the  said  authors  neither 
mtanber  law  nor  languafce.  3.  Although  they 
nkon  teditioa  amongst  the  crime  Iteia  tuajn- 
Wit,  yet  that  is  nut  to  be  regarded  ;  fur  tbey 
veoinnlete  Authors,  and  are  not  eHteenied  as 
Ntkrt  in  o  jr  law,  as  ii  is  in  It.  956,  and  Coke 
1. 35,  hot  tbey  mny  lie  used  for  ornamenr,  and 
thy  are  good  marks  to  shew  to  us  how  the  law 
•tithtn  taken,  but  not  to  declare  bow  the  law 
iisl  ^  ilay ;  they  are  no  bbdiag  'authnrity ; 
mdirihey  be,  yet  we  have  tbem  on  our  side 
Htw^:  for  in  his  14th  book,  GlanvLle  says, 
Tjnt  a  man  aocated  of  ftudi  a  crine  shall  'be 
Ultd,  and  that  the  accoser  thai!  give  pledget. 
MBracvtn  tays,  That  if  no  accuser  appears 
Aty  tbaJI  be  set  «t  liberty.  And  Heugliaa 
■wbont  anonaiil  the  crimes  Uag  rntatit/itit,  ihe 
teach  of  the  peace,  and  so  does  Glan*ile  alin. 
Hctii,  who  WHS  a  fullower  of  'Bracton,  and 
Masctibt*  much  verbatim  out  of  liim,  cnlU 
Wition,  '  Seductionera'  of  the  lord  the  king. 
Aid  It  Edw.  1,  tbe  statute  of  Rutland,  which 
pncribes  lawt  for  Wales,  enacts,  that  the 
<^f  (hall  inquire  in  hit  turn,  '  tie  seduetori- 
*bm  donini  regis;'  and  it  is.  not  apparent, 
*hnher  be  intended  those  which  seduce  the 
iia;nr  his  people.  And  in  latter  cimes,  Sedilio 
■  odled  Stdutia.  In  tbe  time  of  Hen.  T,  tbe. 
Mri  sTNoftbDmberlaDd,  being  a  gneat  and  po- 
int peer,  and  the  kino  standing  in  awe  of  hun, 
natnl  hiin,  with  34  others  of  ^at  qaality,  to 
**(tr  into  as  obligation  of  3U,000f.  (which  ob- 
Iplion  it  in  the  hands  of  sir  Boberl  Cotton) 
ntd  him,  That  if  the  said  earl  knew  Treason, 
Sadntion,  Jots,  &e.  to  be  intended  to  the  ktn^ 
lh«  he  should  reveal  it.  S.  Also  '  cHmen 
'has  majeataiit,'  which  it  the  phrase  of  the 
Cnil  Law,'it  more  general  than  Treason ;  and 
^oU  aathan  which  baye  been  i^ited  macb, 
Mbw  die  GtW  Law,  which  bath  this  expres- 
Ma;  and  ttdition  by  tbe  Cifil  Xa"  i*  Irettton. 
T«1-  III. 


of  Justices,'  the  principal  copy  where<jf  is  in 
llcunet-Cotlrge  library  in  Canibridge,  and  ihera 
is  also  Bcojiy  ill  LiDcolii't-Inn  librvy;  nor 
Bri-.lon  in  his  book,  who  writ  in  tbe  name  of 
the  king,  hare  not  the  word  Sediiio  in  them. 
And  I  Bttiriii  confidently,  that  Ibire  cannot  bt 
■hewn  any  record,  Ixiuk,  or  statule,  after  ibe 
making  the  otatata  of  35  Kdw  3,  in  ubich  ,!!ie- 
^tio  it  taken  as  a  capital  offence.  And  yet 
the.'Mirrour  of  Justices'  reckoita  up  several 
kindi  of  Trenton,  which  he  divides  into  Tree- 
sons  against  tha  celettial  or  terrestrial  majesty ; 


of  A  U.  S,  Trial  S4,  is  to  be  undetslood,  which 
■ays.  That  a  miscreant  diall  forfeit  his  lands, 
because  it  is  a  kind  of  treason).  And  also  hA 
■hews  divers  Treasons  against  the  king,  as,  Tha 
(teRowering  of  the  king  s  elilekt  daug]it«r,  &c. 
butnota  word  of  Sedition.  But  admit,  that  Se*. 
dition  imports  a  greater  ofK^nce   than  tumult, 

£'t  there  is  00  colour  to  sav,  that  it  ia  treason  ; 
r  25  Edw.  3,  is  a  flat  bar  '(that  I  may  use  iht 
loiier-Teinple  phrase)  to  any  thing  tn  be  irea- 
son,  which  is  not  contained  in  it,  unlest  it  be 
niade  treason  by  any  tpeeial  act  afterwards; 
and  35  Edw,  3,  does  not  make  St  treason. 
Stamford  cites  Glanville,  and  Bmctoti,  and 
other  ancient  books,  to  shew  «  hat  was  treasoit 
before  the  said  statute,  and  what  not :  and  hi 
says,  that  it  was  a  great  doubt  what  thdl  be 
caLed  ireasoD  ;  ■aviiig  (hat  all  a^ec.'tliat  any 
thing  that  tends  to  the  deiilH  of  the  kins  wat 
treason.  3djy,  Now  examine  the  words^  — : 
'  against  us'  —  tboie  wortla  make  not  the  criint 
more  beinoos,  it  the  case  is.  I  agree,  that  if 
tlic  wnrds  had  been, — '.Sedition  to  take  away 
'  the  life  of  the  king — it  would  have  been  trea- 
son ;  yea,  tbe  very  thought  of  treason  is  trea- 
son, (though  none  can  judgeibereof  till  it  fae 
produced  in  act)  10  II.  6,  47.  b.  hy  Newton; 
13  Jac.  B.  Jl.'JoIin  Owen's  case,  the  writing  of 
a  letter,  whereby  he  intended  the  death  uF  the 
king,  was  treason  ;  but  it  is  nut  eipresoed,  that 
the  raiiiag  of  this  sedition  wii  with  such  intent, 
whereby  this  differs  fi^m  all  the  cases  which 
cnu  be  put,  m  which  tiiere  is  such  au  iotenl  of 
the  death  of  the  king.  Also  this  raising  of  se- 
dition against  as,  shall  not  be  intended  treason ; 
Ibr  if  it  had  been  to,  tbe  king  would  have  so  ei- 
presaed  it  by  the  word  Treason :  for,  ns  in  his  graci- 
ous disposition,  hewill  not  extend  a  fault  beyond 
the  magnitude  thereof,  so  he  will  give  to  every 
offence  the  true  and  genuine  name.  If  the  re- 
tarn  had  been — '  against  our  persoi^ — it  had 
been  more  certain,  that  it  concerned  the  king 
immediately ;  this  m:iy  he  against  any  point  of 
his  government.  And  the  proper  and  natural 
signification  of  the  wonts,—'  Bgninsi  us'--is  at 
much  OS,  against  our  nuthoritv,  our  soperinteti' 
dency,  agaratt  our  peace,  crown  and  dignity. 


•  See  FortescuB,  f.  115,  the  which  was  not 
cited ;  there,  never  sedition,  ttrif^ot  noniuir 


ift9}  STATE  THlAtS,  5  Chauk  L  ifiM. 
Kliicb  are  the  uaua]  irord*  in  eT«>7  iiiclictniuit 
ot'  felony.  Ever;  breacli  of  the  pence  ii 
against  ihe  king.  The  usual  Return  upon 
every  ordinary  writ  out  of  Cliis  conrt  i>,  thai 
the  party  be  before  Vt;  and  cont^empt  lu  this 
court  ia,  coQteinpC  againit  U» ;  and  it  is  in  the 
nature  o(  tedilion  to  the  king.  Contempts  to 
tlie  court  of  Siar-Cbamlter  are  coniempu 
■gainst  Us;  and  uJKiii  them,  commiasiont  of 
lebellion  issue :  and  if  tlie  parties  are  broniht 
in  upiin  soch  commissions,  yet  they  ara  bailable 
until  their  conviction.  Tlie  kiiig  stitea  bimielf. 
Us,  in  writs;  mid  every  disobedience  to  any 
writ  may  be  said,  '  Sedition  against  Us.'  Routs, 
ciots,  ill^al  Bswdiblie*,  Duy  hsII  be  said  and 
eailed,  ■  Sediiion  agaiiitt  Us  :'  and  for  such  of- 
feiicei,  a  man  shall  not  be  restrained  of  his  li- 
beriy  upon  an  '  it  may  be.'  Such  a  Ufturu  is 
Decessary,  by  nbidi  llie  court  may  be  truly  in- 
tbrmed  of  tlie  oSence.  Far  tlie  writ  of  Uid>e» 
Corpus  it,  to  submit  and  receive  wiiat  the  coiitt 
ihall  ordain.  And  this  t^tuin  of  this  nature  i) 
'  not  to  he  compared  to  writs,  which  are  genetal, 
Aud  make  a  brief  nitmitioD  of  the  oiatcer,  and 
arv  pursued  and  eiplained  by  subsequent  de- 
clarations.  And  yet  I  urge  not,  ihnt  the  »> 
turn  oi^lit  to  be  as  certain  as  an  indictment; 
for  aib  ludictment  of  Murder  is  not  ffiod,  if  it 
lack  the  word  murdimtit.  But  (he  return  upon 
an  Habeas  Carpus,  q.  d.  inler/ecif  I,  S.  upon 
prepensed  malice,  is  good ;  for  the  nature  of  the 
tluug  is  ex  pressed,,  altbougti  tlie  FbrniaL  word  be 
-wanting ;  but  out  of  ihe  ileturu,  the  eulutaace 
of  tlie  offence  ought  always  to  appear,  whicli 
appears  not  hcie.  But  it  hath  been  laid  by 
the  oth^  side,  Thai  let  ihc  cause  in  the  return 
be  ■*  it  will,  jei-  it  is  not  irarcrsabla,  0  H.  6, 
54.  and  1  confess  it.  But  w  Coke'^  11  Uep, 
p.  93.  Jumei  Bagg't  CaseJs,  tlie  return  ought 
to  have  certainly  to  much  in  it,  that,  if  it  be 
blse,  tlie  parij  grieved  may  hare  his  action 
upon  the  case.  And  the  gtievance  complained 
of  in  the  Petition  of  Kighl  \f,  Tliat  upon  luil 
ieturn  no  cause  was  ceniSed,  that  is,  no  lucl 
cause  upon  which  any  indictment  might  bi 
dnkwn  up  ;  for  we  never  understand,  that  the 
party  shall  be  tried  upon  the  U.  Corpus,  I 
iluit  upon  the  matter  contained  wiiliin  it  .. 
Indictment  sliall  be  made,  and  lie  shall  have 
tis  trial  upon  it.  And  yet  it  Is  dear,  and  it 
hath  been  agreed  of  all  hands,  in  tlie  argument 
of  the  grand  H.  Corpus,  Mich.  3  Car.  in  this 
court,  that  if  the  c.\use  be  certified  upon  th 
return  of  the  H.  Corpus,  that  the  court  ma 
jiidj(c  of  the  lc-galit;r  bf  that  cause.  2.  Con 
sider  the  parts  of  this  Return,  as  they  are  coiu 
Bled  togeuier, — '  for  notable  coot^ipu  by  bim 
•committed  against  our  self  and  our  govern' 
'  nieot,  and  for  stirring  up  of  sedition  against 
.'  Us.' — Upon  the  entire  Ileiiini,  tlie  kiagjuii 
Sedition  vith  notable  Contempts;  so  that  it 
g*  much  as  if  be  liad  s&id,  thai  Sedition  is  or.. 
of  the  notable  contcinpis  meuti^ined  in  ihe  first 
port  i.f  the  Return,  lO  that  he  makes  ii  but  a 
sonteinpt.  Fur  Clx'  genenhiy  and  iuceriuintv 
of  theReturn,  Ireli-r  inytelf  to  the  cases  put  hv 
Mr,  AskjWid  I  will  not  wbv«  aiiy  of  tbttii. 


. — Frotecdu^^iAM  Wm.Slratd,aq.  [900 
True  it  is,  if  the  Retom  bad  been,  that  it  was 
for  treason,  he  bad  uot  been  ba^iible  but  by 
the  discretion.of  the  court,  and  such  retaru 
would  liate  been  good;  but  it  is  not  so  of  Se- 
dition. •  Gard.  167.  treason  is  applied  to  m 
petty  offence,  to  the  breach  of  trust  by  a  ptOT' 
duin  in  Socage  ;  but  it  is  not  treason.  And  ao 
Sedition  is  oifar  less  nature  ibaa  Treaion,'aiid 
is  oftentimes  taken  of  «  trespass ;  it  ii  not 
treason  of  itself,  nor  ttiUtiati  was  never  used 
in  an  Indictment  of  Treason.  It  was  not 
Treason  be&ire  tlie  aS  of  Edv.  3,  nor  can  it  be 
treason  ;  for  35  £dw.  3,  is  a  flat  bar  (as  1  hare 
soid  before)  ta  oil  other  offeoces  to  be  treaaon. 


nature  thqn  sedition  is,  which  ore  no  Treason, 
OS  Insurrections,  &c.  which  see  in  the  statute 
11  H.  T,  c.  7.  SU.  S,c.  9.  ell.G.c.  14.  5R.a, 
c.  6.  IT  K.  8,  c.  8.  And  by  3  and  4  E.  6, 
c.  5,  the  assembly  of  twelve  pcrMOS  to  attempt 
the  alteration  of  any  law,  and  the  contiouance- 
together  by  the  space  of  an  hour,  beii^  cwn- 
manded  t<i  return,  is  made  treason ;  which  act 
was  continued  by  the  Statute  of  1  Mar.  c.  13, 
and  1.  Eiiz.  c.  16.  but  now  ig  eipired  bv  her 
death,  and  is  not  now  in  force,  (ulthoug^  the 
contrary  be  conceived  bv  some)  wbidi  T  pray 
may  be  well  observed.  Sy  the  Statute  of  14 
Elii.  c,  1,  reljcUinus  taking  ofUia  Castles  of  the 
king  is  made  Treason,  if  tbey  be  not  delivered, 
&c.  vrhicU  sheivs  clearly,  that  such  taking  of 
Castles  in  its  uaiure  was  nut  treason.  But  the 
■aid  Statute  is  now  fipired  ;  and  also  all  sta-> 
tuies,  ciealing  new  Treasons,  are  now  tqicaled. 
But,  for  a  conclusion  of  this  part  of  my  aigo- 
incnC,  I  will  cite  a  case,  which  I  think  express 
in  tho  point,  or  more  strong  than  the  case  in 
oueatioii :.  and  it  was  M.  9,lu.  3,  roll  39,  B:  B. 
Peter  Russel's  Case ;  he  wns  committed  to  pri- 
son by  tbe  Deputy-Justice  of  North- Wales,  W~ 

of  Sedition, 


accused  by  one  William  Sotynva 
nd  other  ttungs  touching  the  king  ; 
And  hereupon  a  Commisainn  issued  out  of  tho 
Chancery,  to  enquire,  if  tbe  said  Peter  Rusael 
behaved  himself  well  tit  seditiiiusty:  against  tbft 
kiog  ;  and  by  the  inquisition  it  was  {aan6,  Itiat 
be  behaved  himtelfoelL  And, upon  an  Ilaben 
Corpus  out  of  this  court,  his  body  was  Tetumrad, 
but  uo  cause.  Bat  tlie  said  iDquisiiion  was- 
brought  hither  out  oCChancery,and  for  that  no 
cause  of  his  caption  was  retimed,  lie  prayed 
jJelivery;  battue  court  would  nut  delim' him, 
till  it  knew  the  cause  of  bis  cOmmitoient : 
Therefore,  taking  no  regard  of  the  said  inquiai- 
tion,  tbey  now  send  a  Writ  to  the  noo  justice 
of  Wales,  10  cerdfy  tbe  cause  of  bis  conmiit- 
ment.  And-  thereupon  he  miide  this  retnm, 
Tliat  the  aforesaid  Peter  Russel  was  taken, 
because  one  Willinoi  Solynian  sbaiged  him, 
that  be  had  wmmitied  divers  Seditiont  against 
the  lord  the  king;  and  for  thai  cause  he  was 
detained,  and  for  no  uther.  And  because  .tbe- 
Returu  mentions  nut  what  Sedition  in  special,  be 
lyas  bailed,  but  not  discharged.  And  I  dcbire 
the  bailment  of  tbe  prisoner  only,  and  not  hit 


Kl]  STATE  TttlALS,  SCharluI.  16 

iAitnaee.  1  dfsire  that  ihe  Caie  be  tieil 
obKired.  la  the  said  cue,  there  ura*  an  ac- 
m]  Sedition  agaiDst  (ha  kini;;  tiers  is  onl^rn 
lUmniup  ofseditiou.  Tlie  wordi  of  the  said 
Awud  *[«,  '  videtur  coria  ;'  irhicb  are  tbe  lo- 
loan  irordi  of  ■  Jud|i;ment,  ^ven  upoD  gjNAt 
ddibtratioD.  There  it  wa»— '  for  other  tiling* 
'  CDaeeming  m' — This  >•  oil  one  as  if  he  btd 
Mid, — '  &r  other  things  against  us' — Concern- 
iig  tiic  king,  and,  agaiast  the  king,  ar«  all  one, 
u  aMcan  bj  95  E.  3,  c.  4,  lie  Clero,  StHmf. 
114,  Vtema.  1,  c.  15.  Bracton,  f.  110,  14  Elii. 
c  1.  And  the  words  of  the  Judgment  in  the 
nidCase,  were  not '  dimittitm' '  ideo  diautteu- 
'  <ht«,'  which  impl;  the  tight  of  the  party  to  be 
bulcd.  The  said  case  in  Mime  things  was  more 
jnrlicular  than  out  casr,  and  mure  Urosg;  for 
ibeic  was  an  accuser  to  boot,  which  wants 
in  wu  ca«e.  There,  true  it  is,  that  ii« 
«is  committed  bj  the  Justice  ofWuiet,  and 
fare  bj  the  king  tiimself;  but  this  makes 
u  dlSerence,  as  to  this  Court;  for,  be  the 
tunmilmeiit  by  tlie  kiug  hinualf,  or  by  any 
Dtb«r,  if  it  be  not  ujton  juni  canse,  the  partj 
atj  be  baited  in  this  court.  And  for  the  in- 
tjuiiition,  which  is  mentioned,  it  was  no  trial  in 
lti«cut;  nor  did  the  aourt  giTs  any  regard 
ihctrCo.  To  detain  tb«  priiolier  by  tbe  com- 
Biud  of  tbe  king  singly,  is  against  the  L'etition 
*f  ttigbl;  but  it  being  coupled  with  tbe  cause, 
lltg  cime  ii  to  be  considered,  and  tbe  truth  of 
tk  cause  is  to  be  intended,  as  well  where  it,  is 
DOitiMied  to  be  by  an  infehonr  Judge,  a* 
wboe  b>  the  king  himself,  for  it  it  tmver^ble 
aeiiher  in  the  one  nor  other.  And  SS  II.  8, 
roll  3T,  B.  H.  and  1  H.  B,  roll  8.  Harrison's 
Caw,  resolved.  That  a  man  committed  by  ths 
(<mmaudofth«kingi*baitahle.  And  33  Eliz. 
it  wu  resolved  by  all  tbe  Ju!>ticei  of  Eagland, 
■hich  I  have  viewed  in  Chief-Justice  Ander- 
mb'i  Book,  under  his  own  hand,  and  it  was 
Frodnced  in  parliameut,  That  all  men  commit- 
iH  by  the  privy-council  are  bailable,  if  tiie  com- 
nitiDeat  be  not  for  Higli-Trenson.  In  all  cases 
of  canmitment,  an  accuser  is  understood.  Sup- 

Kthat  the  accusation  mentione<1  in  Russel's 
of  Sedition,  had  been  an  accusatioo  uf 
Treuon,  then  the.  Judges  ought  not  to  bare 
htiled  him  of  ligbt,  and  no  man  will  sny,  but 
llat  the  said  accusation  was  a  good  cause  to 
rammit  him.     But  (he  discovery  of  the  offence 

^k  to  be  afterward  in  an  iadictmeDt. 
'onrthly,  I  com^-to  the  Objections  whioh 
kne  been  made  op  tbe  contrary. 

1.  It  was  objected.  That  tills  was  a  case  of 
ptu  coasequeace;  T  cmitMt  it,  but  this  conao- 
<|Kace  is  oot  to  tbe  lung;  fiir  if  it  be  truly 
treason,  then  they  might  have  ratomed  trsason, 
■Ddthaothepitity  wasootto  be  bailed  of  right, 
tSl  there  ibould  he  a  feilure  of  proaeouiion ;  ■* 
«u  lately  la  Idelvin'i  Case,  wbii  was  bailed  for 
hick  orjKDsecuiiun;  ibe  retuni  bciag  far  High' 

I.  It  was  objected  that  there  cau  be  no  cou- 
nRion,  at  ibis  case  is,  therefore  titere  ought  lo 
te  coercive  power  to  restrain  the  prisoner. 
'Hiit  is  itrange  newt  to  me,  tltbt  there  tball  be 


9.— and  odttrt,  o 


ft  Ifoieu  CorpvM.     l3Ct 
1  cannot  be  con- 


any  offence  fi>r  which  a 

victed,   ^nd  if  there  c 

bence  follow;,  that  there  ii  no  ofltnce;  and  if 

there  be  no  offence,  there  ought  liy  consequence 

to  be  no  imprisonmeiit. 

3.  The  cuse  of  14  H:  7,  8,  hath  been  objects 
ed,  that  a  Jn»tice  of  Peace  may  cominit  rint^* 
witbbut  bail.  1  confess  It,  fur  this  is  by  forca 
of  a  statute  uliicb  ordains  it. 

4.  Ithatfa  been  objected, Thatifanliouie  be 
on  fire,  it  i*  lawful  to  pulldown  the  odgbbour'* 
house,  for  the  prevention  of  furtliec  mischief; 
and  the  cases  of  %<l  Ass.  and  I'l  £.  4.  tlml  every 
man  mayjustifr  tbe  coercion  ofa  mad-man.  I 
ansiTer,'Tliat  these  cases  are  true,  as  of  iierrt* 
sily,  and  no  other  evasion :  but  here,  bail  it 
profferied,  which  is,  body  for  body.  Fire  i* 
swift,  end  cBDDot  be  punislied,  and  no  cautiok 
can  be  obtained  thereof  But  observe  the  true 
inference  and  contequeoce  of  iliit  nrguuient  ; 
If  my  house  be  oh  lire,  my  neighbour's  must  I  « 
pullM  down ;  Mr.  Selden  is  s^itious,  ergo  Mr. 
Herbert,  his  neighbour,  must  be  ImprisonMl 

5.  It  hiitb  been  objected  i>ut  of  Br.  Treason, 
34. 1  Mxr.  That  the  said  Stnlute  of  25  £.  3; 
i*  token  largely,  and  that  the  detaining  of  a 
Castle  or  fortress  is  TreHSon.  Tu  ilits  I  answer, 
that  the  bare  detaiiiii^  of  a  Cnttle  is  not  'I'ren- 
■on,  unless  it  be  Wib  inteotion  of  tbe  death  of 
the  king ;  but  the  taking  of  a  Cnstle  is  treason. 
And  tliecase  there  meant  by  Brook,  is  Consia- 
ble'sCuae,  Dy.  128.  And  Iconfcss,  13  Eliz. 
Dy.  898,  Dr.  Story's  Cnst*,  (hat  conspiracy  M 
invade  I&e  kingdom,  is  I'rcason  ;  for  this  cannot 
be  aithnut  great  danger  of  the  deaUi  of  the 
liing  ;  ibr, '  urma  tencuti,  omnia  dat  qoi  just* 
'  iiegat.'  And  all  (hose  lodictmenta  were,  that 
tliey  intended  tbe  death  of  the  king;    but  no 


S.  It  hath  been  objec 
out  ofthe  Petition  of  Right,  because  b  this  re- 
turn tbeie  is  a  cause  shewed.  Bui  tiie  grievance 
wliereilpon  the  Petition  of  Right  was  frasncd, 
was,wbetc  no  cau^  was  returned.  It  is  true, 
that  the  grievance  goes  no  forther,  but  where  no 
cause  was  returned  ;  for  that  was  the  grievance 
Ht  tliat  time.  But  the  words  of  the  PeutioB 
of  Right  are  further,  ■  nitJiaut  being  chnrged 


eaase  ought  to  be  contained  in  the  Return, 
nllich  being  put  into  an  Indictment,  (he  parly 
may  have  his  Answer  thereto. 

1.  It  was  etjected.  That  the  Return  shall 
not  be  constracd  and  eapounded  by  iractioDS. 
I  answer,  That  we  need  dot  makesuch  an  .-ex- 
puution;  for  the  joint  construction  thereof 
i«ake»  more  for  u^  than  tlie  several,  as  is 
shewed  btfore. 

8.  That  a  general  Return  is  saScient,  and  it 
need  not  have  terms  of  art  in  it,  as  an  indict- 


*  See  Shower's  Mngistracy  of  England  vindi- 
cated ;  wliich  will  be  found  at  tlie  end  uf  tbe   . 
Trial  of  Lord  Uus>el:  ^.n.  16B3.     'See  also  sir 
John  Hawles's  Reply  to  the  Magistral:;  of  Eng- 
ImkI  vindicRted,  p.  30, 


968]  STATE  TKIAI3.  JChabluL  les^^-PtoeMk^  i^mial  Wm.  Stroud; aq.  [AH 

die  wlf'tame ;  iind  if  the^  be  lli«  Mun« 
offence,  then  die  aedition  ber«  mtenrled  ii  iMt 
TmiBoi),  and  ao  the  part;  ii  bulible.  9.  Thii 
prnoiier  wai  ready  at  ihii  bar  the  ItM  term, 
Hnd  here  was  a  griLnd-mrj  at  bar  Hie  l<uk 
tem,  and  here  nras  tbe  king's  couniel  preMtnr, 
n-ho  are  mott  fraichfiil  fur  tlie  kill); ;  and  jet  a* 
indictmcm  was  nnt  prcrerred  loihetn  agakiK 
lIiis  priflODer.  WhicDihinp  iiuhKeme  to  bv 
ofopinion,  that  ifae  o3ence  here  mentioiwd  W 
this  Return  is  not  TivsHin,  or  so  great  ti  is 
precendGd  oa  the  other  aide.  I  wiH  r«incnibier 
Due  case  which  perhaps  may  be  objected,  (aad 
yet  I  think  they  will  not  object  it)  and  so  co»- 
clade.  11  It.  9,  Parllameiit  Holl  14.  in  tha 
printed  stalate,  c.  3,  and  5.  where  it  appear^ 


ment  ou^it  to  have.  For  answer  I  confess  it ; 
bat  1  uLiirin,  as  nboTe,  tliat  n  retuin  iiu|;tic  to 
be  so  piirticulnr,  that  the  nature  ol'the  oflence 
ougbi  lo  nppear  out  of  it :  and  il  is  not  lo  be 
coinpareil  to  general  Wnts,  as  '  ApostatA  capi- 
endo, Idiiitfl  exniuinatido,  Leprmo  amnTeiiiJa,' 
and  the  lik<.':  for  those  writi  are  good  enoufjli, 
because  they  contain  llie  very  iitatter.  And 
although  it  liath  been  said,  that  tlieie  are  two 
kinds  ul' lepers,  yet  I  never  lieard  hut  of  one: 
and  the  Writ,  ■  de  liKrctieo  combareodo,'  is 
geTie:^!,  and  good,  became  it  is  but  a  writ  uf 
ei:ecutiun  upon  a  Judgment  gi>en  by  (lis  spi- 
ritual   power.     Bitt  because    they   might   not 


neddie  with  tlie   bkx>d  of 
U  by  the  secular  poi 


I,  the 


0.  It  hath  been  obiecled,out  of  30  An. 
19.  that  the  kln|  houM  liit\. 


Ranged  for  bunfjing  into  En^lMtd  llie  Dutli  of 
the  pope.  But  the  Book  answers  itself,  for  be 
was  not  drawn  and  linngeil. 

10.  The  Stattitc  of  Waitinin.  1,  c.  1.^.  was 
objected.  But  as  oft  as  ihat  Statute  is  ob- 
jerted,  I  will  altays  cry  oul,  '  The  Petition  of 
'  Right,  The  Petition  of  Ri^t  Y  ns  the  king  of 
France  cried  out  no'hing  hut  France,  France  ! 
when  all  (he  ievemi  dominion)  of  the  king  of 
^win  were  objected  to  bicn. 

11.  A  curious  diwinciiun  hatb  tjeen  taken 
by  Serjeant  Davanport,  betctcen  Btirring  to 
Sedition,  and  stirring  t^  Sedition  ;  for  the  tiret 
implies  an  ioLlinatioa  only  to  do  it,  the  second 
ivtplies  an  aet  done.  But  this  is  too  nicr,  for 
if  a  mnasiir  upSedltioo,  or  to  Sedition,  ifii  be 
with  intention  of  ths  death  of  the  king,  the  one 
mad  the  other  is  Treuon. 

13.  The  opinion  of  Fortfscue  in  31  U.  6, 
10.  h.  bath  been  objected.  That  for  an  oQence 
done  to  tbe  court,  ■  msa  way  be  committed 
before  conviction.  To  this  I  answer,  1.  Tliat 
tbe  BiK>k  does  not  say,  that  he  ihall  bo  com- 
mitted without  bail.  9.  llie  oHence  bein^ 
donein  face  of  the  court,  the  very  view  of  the 

IS.  There  wb«  objected  the  H  of  Edw.  3, 
tS.  Sir  Thomas  Filchet's  Case,  who,  for  gnin^ 
knoed  in   the  palace,  was  coniinitleU  hy  this 
eoivt  without  bail  or  mlunprizei  which  seems 
to  be  thestron^^st  and  hardest  cs so  ih:it  hnth 
bean  obiected.     But  the  answer  to  it  is  dear, 
and  aatl.'niable ;  for  tbe  statute  of  3  E.  3,  c.  3. 
il,  Tliat  if  anv  one  cone  armed  before  the  Jns- 
ticCE,  he  sliail  forleit  his  armour,  and  shall  be 
imfrrisoned  during  the  kinj^a  pleasure;  so 
by  the  eipress  pnrview  of  the  statute,  auch  a 
man  is  not  bai table.     So  my  ooncluKion  rem 
firm,  ootwitbatanditig  any  of  those  objecti 
That  llie  prisoner  here,  being  committed  be- 
fore conviction   of  any  oBimce,  (it   being 
poniblo  to  underatnnc)  this  oAeuce  treasoi  _ 
bailiUe;  and  that^ie  is  bailable  here,  I  will 
offer  t>»o  other  reasona;  1.  The  return  is  here 
fbr  Sedition  ;  and  there  it  an  inforuiation 
the  Star-cbambei  aiaiost  the  prisoner,  (or  (edi- 
lioiiS-; practices  ageiuat  ibe  kinv  and  his  govern- 
OiTOt.     J  willuotafiinn,  that  they  are  t^samt 
ofcnce,  hot  there  ii  soise  piDhability  that  tbcy 


jf  lb« 
king  to  Tstulian  and  Belknap,  the  t 
Justices,  and  to  the  other  juatices:  one  oC 
which  questions  was,  bow  ibey  are  to  be  pu- 
nished, who  resiiled  the  king  in  eierciring  hi* 
royal  power,  ltd  And  the  answer  of  th« 
Judges  waa,  nim  ■coee,  that  they  are  lo  he  po' 
niibed  as  traitors ;  and  81 R.  S,  c.  SI.  this  opi- 
Dion  was  confirmed,  But  allerwardsin  1  H.4, 
c.  3.  and  4,  and  1  II,  4,  in  the  Pailiainent- 
RoU,  n.  06,  87,  the  Jadges  were  questioned, 
fortheiropiaion,in  pulraBient.  They  answered. 
That  ihey  were  threatened  and  enforced  to 
give  this  opinion,  and  that  they  were  in  itutb 
of  ibe  coatrary  opieion.  And  Belknap  said. 
That  he  acqnointed  and  protested  lo  uie  cart 
of  Kent  nforehand^  that  hia  opinion  was  always 
10  the  contrary.  But  the  pariiament  wa»not 
content  with  these  excuses,  but  they  were  all 
adjudged  Traitora ;  and  Tresilian's  e»d  is 
known  to  nit,  and  Belknap  was  banished;  for 
liis  wife,  in  9  H.  4,  bronght  a  writ,  without 
namtiu  her  imsband,  becnuse  be  waa  banished. 
And  the  said  Statute  of  21  R.  S,  was  repeiiletl. 
Therefore  upon  the  whole  mnttar  I  codcIu^, 
that  the  prisoner  ongbt  to  be  bailed. 

On  the  same  day,  air  Mile*  Ilobart  Mid 
Beojnmin  Vulentine,and  Denzil  [lol  I  es,  esquire* 
were  at  the  bar,  ubltu  an  Habeas  Corpui  di- 
rected til  the  aeveral  priaoni ;  and  their  counsel 
wns  ready  at  the' bar  to  have  argued  the  caae 
for  tliem  also  :  but  because  the  same  Return 
was  made  as  above,  ibey  said,  That  all  of 
them  wnuld  rely  upon  this  Ari^uineut  made  bi 
Mr.  Uttlttun. 

JtfF.  Sflitea'i  AanrHEST,* 
--        (,.  ----- 

eintdnm  el 

King's-bench  to  the  Lieuleaant  of  tba  Tower, 

he retuma, thatthe priMinerwHsfinteoilimiltcd  ' 


*  The  Editor  of  Mr.  ScMen's  Works,  in  bit 
Preface  to  the  thinl  Volume,  tavs,  "  Thtt  n 
tbeS>batanceofBnAiigifm*nima^inhis(Mr. 
Sriden't)  own  cowt,  and  wbidi  was  prgaoancod 
by  Mr.  J.ittleton."  But  as  there  ia  so  ireaC  a 
di3ei«nce  between  thsM,  we  leave  the  Reader 
tojnttgeofthat;  and,  asitcooMmt  so  grand* 
point  ns  thi  Ijbcrtf  of  tte  aottjcct,  b«TO  tbeie* 
Mrttitea  toib. 


nGooglc 


KS]   STATE  T&lAl^ .  3  CexftLn  I.  ]  62a.— md  ahtrt,  m  a*  l^Aiai  Coifia.    [9GQL 

M  fail  cnUodj  by  B  warrBnt  of  tbe  Imh  of  the 
pnrjH:i)iu]cil,  dated  4  Martii  9  Carob  regit, 
Md  recites  the  irafTanc  wlierein  tba  kite's  pica- 
aim  Tor  rbe  c«miniUD*nk  is  ako  ngnificd.  And 
knbei,  be.  returm,  that  tke  prison^  b  d»- 
akted  b*  him,  b;  virtue  i^  another  warrant, 
ikamwri  diiwed  to  him,  undrr  ihe  kinufi 
«wn  haml,  dated  the  rdi  of  Hay  foUowMg  ; 
lAeitgi  it  i*«ignified,  LhathewHtotalcEkBOfT- 
kdge,  dMt  the  commitiDeDt  wm  '  for  noUMe 
'  EosicBpts  comnined  t^nst  Oar  SeV  and 
'  Oar  GovenmenC,  and  for  itirniig  np  of  8a&- 
'  tMm  egaioit  U*,'  with  a  conunand  ta  detain 
1^  oDDl  hit  nue*t]F'i  pleatnra  irara  ianfaer 
laoan,  &c.  And  w  certifies  cba  coutt,  *at 
tee  ere  tbe  cansee  of  takii^  and  deUuniog 
km,  aad  bring!  in  bk  bodj  according  M  tbe 
nit.  And,  whether  upon  this  Return,  the 
friMoar  oi^bt  to  be  delivered  bj  tbe  coort, 
•^  ufficioit  bul,  IK  renunded  to  the  Tower, 
ktke  qucAion  i  Thai  it,  gupposing  the  Return 
to  be  everj  wv/  true  (ae  in  all  cotes  it  must  be 
Mppoacd,  when  the  qaestion  arises  upon  a 
Rtorii),  whetber  there  be  mCcivnt  cbbbc  ei- 
Hetied  in  ii,  fur  which  tbe  prisoner  ought  to 
be  reaapded  ?  Or,  that  the  cause  of  th«  com- 
■itment  be  aui^  (as  it  a  eipressed  in  tbe 
ntnm)  that  be  ooghc  to  be  bailed  t  If  there 
me  M  more  in  tlie  cttte,  but  the  lords,  or  the 
ki^i  connDBod  onlj,  witboot  farther  cautc 
iknred  of  tha  comtniiinent ;  then  it  were  dear, 
bj  Ibt  Declaration  of  both  hoxtet  of  parlta- 
■eBt,*n(l  the  Antwer  of  bis  nrnjeitf  lo  that 
Dtdaratioa,  in  tbe  late  Petition  of  Ri|;ht,  that 
the  prisoners  ime  to  be  remanded.  And  the 
abjectione  tEiat  totae  bate  made,  oat  of  the 
fUtule  of  Wettminster,  the  firtt,  c.  15.  That 
penoDs  committed  by  command  of  the  kinc, 
•re  Bot  leplevianble,  aitd  out  of  Stamrortl,  fuS. 
n.  ks  if  he  interpreced  '  baibhte'  (which  in- 
deed he  doth  not,  if  he  be  obserred)  to  be  un- 
4erstuodin  that  statute  by  '  rejJeTiiable,'  and 
die  like,  nre  directly  against  tbe  very  body  of 
die  Petidoa  of  Right,  aod  were  so  fully  cleared 
i«  tbe  debates,  oot  of  which  the  Petition  of 
Right  wui  fraiDedftLat  to  dispate  them  again, 
nre  but  to  qoettion  what  CDe  w4x>te  periia- 
■Mat  had  nlreadi  rewilved  on,  as  the  certain 
SDd  ettabiiahsd  lur  of  th^  kingdom.  Nor  is 
iltisdy  la  diipote  here  again  ibe  general  power 
tfcommilfDent,  by  (he  lords  or  by  the  king 
kituelr.  lliere  i)  a  commitment  in  the  case, 
ud  there  is  a  cause  shewed  of  ihat  commit- 
wnt,  and  of  the  detainer  in  prison  ;  and  the 
^■■liiy  of  that  cause  only  it  iraly  tbe  vAe  quea- 
lun;  to  the  Matinn  of  which,  th«  oatire  and 
come  of  hails  upon  afeaces,  either  returned 
(eoenlly  upon  Ilabeas  Corpus,  or  appearing 
■Mre  specially  upon  indictoienls,  it  SMrtly  to 
W  first  opened.  All  oifeneei,  by  the  laws  of 
Ae  mdm,  b«irig  of  two  kinds :  tl»  fine,  pa- 
iMaUebylossofjife  ot  limb;  ihe  second,  by 
|nc,  er  sivne  pecuniary  mulct,  or  damage  and 
iwprite  Hment)  or  by  one  of  tbem  ;  and  those 
•fibe  fiiat  kind  beii^  treaion,  mnrder,  felo- 
ninoriess  iiMure,  nd  some  more;  and  of 
tbe  lecosd  kind,  bloodsheds,  afirBy*,  and  other 


,  If  any  prisoner  stand  committed 

(though  before  conviction)  for  treason  ormuiw 
der;  the  Judges,  for  aught  tppears  in  tb« 
Books,  have  not  oAen  used  to  let  him  to  bail} 
unleti  it  have  appealed  to  them,  that  there  bun 
[CB  either  want  of  protecntion,  or  of  evidence 
proceed,  or  that  the  proceeding  through  dit^ 
ability  of  the  appellaot  (in  case  of  appe&),  a* 
wbeii.beiaexeommonicate,  isdelavMl;  or  that 
tba  evidence  ia  slight,  or  some  sutJi  like  cause. 
Ba  ttrat  in  tbe  btiiliitg  upcm  such  offences  of 
die  highest  nature,  a  kiAfl  ofMiscretion,  ratbat 
than  a  constant  law,  hath  been  eiercised,  whM 
it  stands  wholly  in^ffnent  in  the  eye  of  th* 
court,  whether  the  prisoner  be  guilty  or  not,* 
And  according  to  tlwt,  they  often  let  to  bail, 
detain  in  prison,  or  remand  the  prisoner.  Alsd 
in  Felonies  of  less  natore;  which  being  all,  at 
those  of  ihe  greatest  nature,  capital,  and  so  the 
pmiishment  of  the  sane  ibove  imprisonment, 
the  imprisonment  of  the  oSenders  withont  bMl, 
is  nfily  used  ad  taivani  eutlediam,  and  cannot 
be  uicd  adptenam.  But  if  >  prisoner  beloTa 
conviction,  or  somewhat  tbnt  supplies  ■  cod> 
viction,  (so  therafure  also  lit  enough  before 
cunviction)  stand  committed  for  trespasses  only,  . 
as  all  offences  of  the  second  kind  are,  and  are 

Eunishable  only  fay  line  and  imprisonment,  or 
yone  oF  them  (in  which  case  imprisonment  is 
to  be  the  highest  part  of  his  punishment,  after 
conviction)  ttiere,hy  the  constatlt  coarse  (unleas 
some  svecial  act  ofparliarneiu  be  lo  the  con- 
pnrtlcuiar  case)  upon  ofter  of 
he  court,  he  is  to  be  bailed  ; 
whiohagrees  also  with  iilljustice  and  exactness 
of  reason,  thai  so  both  the  court  may,  by  hit 
sureties  and  bail  (to  nbose  care  he  is  a-netr 
committtd)  be  Msured  to  have  liim  rendy  at 
the  day  given  him  upon  the  bliil,  to  onswf  r  all 
proccedini!  against  him ;  and  he  himself,  having 
turfties  that  so  undertake  for  his  appearance, 
inay  not  lie  compelled,  before  conviction,  to 
endure  t^at  continually,  ad  cutlmiiani  only, 
which  is  rhe  fiigliesi  part  of  what  he  is  to  sdW, 
after  conviction,  ad  ptrwrm.  So  that  in  casci 
of  imprisonment  for  olTences  of  the  First  kind, 
diners  cireumstances  raiEht  h\;  for  which  suffi- 
cient bail  oSired  might,  according  to  the  use, 
be  refused  by  the  court.  But  in  cases  of  im~ 
prisonment  for  alienees  of  the  second  kind, 
sufficient  bail,  afTered  before  conviction,  ought 
of  common  ri|ht  to  be  accepted;  saving  still, 
where  n  special  act  of  parliament  altera  iho 
htw  in  same  piirticular  case  :  but  tliere  is  nu 
colour  or  pretJ-nce  of  any  such  aot  coDreroing 
the  case  in  question  ;  sn  that  we  are  to  eia- 
mine  it  (for  tiie  point  of  bailing)  only  at  ihn 

Tbe  state  then  of  Ihe'quenion  is  but  thbi 
Whether  llmt  expresiion,  '  for  notable  con- 

,<  tempts  against  Our-self,  and  our  govcminent, 
'  Hfid  for  stirring  up  of  sedition  against  Us,'  da 


*  Vide  9  Assis.  pi.  9.  3  Assis.  pi.  13.  43  Assit. 
p).  40.  3ft  Assis.  pi.  47.  4]  Assis.  pt.  14.  SI 
i:dw.  4,  ful.  95^  and  71  Brook,  tit.  Mainpiii« 
00  tmd  6S.  3  EUi.'Dyer,  fol.  179,  «, 


907]  STATE  TRIMS,  SCaAtLZtl.AGW.—I'roeeediigit^aaalWm.Stroud.uq.  [26S 

of  offences  xhu  occur  io  our  books  ui  cipnts 
definition,  descriptioa  or  dedBcatioD  uf  it,' 
though  it  Dccura  toiDeuines  ai  mingled  with 
sonic  other  oSkicm,  iwd  iba  adjecuve  of  it 
oftenenhui  the  substantive:  Nor  hath  (kcre 
been  tM  found  anj  indictment  or  procwding 
upon  iliecriaie  of  Sedition,  bjikatnamcNDgl^rr 
•9  an  oBenoa  in  Ian,  cleaily  eoou^  knoao  bj- 
itsslC  '  Unlawful aMembHes, routs,  riots,coiD- 
'  niotiant,'Brethe'oe*T«at,if  nottliCTCry  thinp 
that  bjr  other  ntunes  do,  fbr  the  tnoit  part,  n- 

S«ss  vrhat  scditiotk  is  m  our  kirs.  Vid.  -3 
ea.7,foL  l,et  Broak,Biots»eta.  Butour 
language,  raUier  than  our  lavs,  hath  receirad 
th«  word  from  Iiatin,  and  thence  hath  in 
preamltles  orK>tutn,and  of  indictments,  mkk- 
times  inserted  it  j  m  (hat  miiiiDg  an  eipreoa 
exposition  of  the  word  in  onr  law,  «e  hava 
reason  to  seek  for  it  first  in  the  lan|i«^a 
whaoce  we  received  it,  and  (hen  in  the  use  of 

Iti  Latin,  that  which  is  nutinj,  raising  of 
tumult,  Hssembling  of  anj'  amea  power,  or 
conventicles,  or  the  like,  is  sedition.  Whence 
it  is,  that  in  the  civil-law,  ttditio  et  lumuUu» 
■re  frequentlj  joined;  and  coacitatorts  ttdi- 
ttonit,  aild  actortt  McJitienu,  occur  in  the  text  of 
that  law*,  for  such  u  stir  up  Sedition.  And 
thence  also  teditia  aililarif  is  used  for  a  mutiny 
of  the  Soldien  in  the  Arm;,  in  Tacitua  and 
otben,  and  tliat  for  no  more  than  the  piiifew> 
ing  themitelves  against  nnj  command  whatso- 
ever given  hy  the  general.  In  this  sense  it  ia 
used  alao  bj  n  lawjer  of  Ephesus,  in  the  holy 
test,  where  Demetrius  the  «i)ver«raith  Biiem^ 
bled  the  rest  of  his  company  against  St.  Paul, 
for  pretiching  against  Diana.  '  For  we  are' 
(Miiti  he,  speaking  to  appease  the  asseraUy) 
'  even  in  jeopardy  to  be  accused  of  this  day's 
'  Sedition,  forasmuch  as  tliere  is  no  cvise  where- 
'  by  we  may  give  a  reason  of  this  coQcourte  of 
'  people,'  Acts  tix.  40.  In  the  same  sense 
TertuUus,  an  orator  and  lBwyer,ple«ding  against 
St.  Paul  at  Csiarea,  before  Felii  the  goveiaor 
there,  '  Wc  liate  found  this  man  a  mover  of 
'  Sedition  amongst  all  the  Jews  throughaui  the 
'  world,  and  a  diief  maintainer  of  the  sect  of 
'  the  Naiarenn,''Acts  xxiv.  5.  And  such  like 
testimonies  arc  vary  obvioas.  In  the  sejf-stiua 
sense  the  word  was  received  into  our  language, 
ai  ive  may  see  in  that  act  of  parliament  against 
the  LdUnrds,  under  H,  4,  9  11.  4,  c.  15.  The 
words  Ihereare,  '  That  they  taught  openly  knd 
'  privily  divers  new  doctrines,  eonirary  to  tbe 
'  faith  and  determinations  of  tlie  holy  church  ; 
'  and  of  lucb  sect  and  wicked  docXiine  and 
<  opioioos  they  make  onkwliil  conventicle*  sjid 
'  confederacies,  they  bold  end  exercise  school!, 
they  make  and  write  books,  they  do  wickedW  ' 
instruct  and  infarm  people.'  '  Et  ad  aedt- 
ttonein  sen  insurreciionem  excitant  ijuantum 
pouuut,  et  magaas  dissentiones  et  dtviiionea 
■  m  popolo  faciunt.'  Itoc.  Pari,  ft  U.  4,  n.  48, 

*  ff.  ad  I.  Julian  majestatia,  lib.  I.  Sc  tit.  ad 
leg.  Jul.  da  ri  publ.  I.  S,  6k.  C.  tit.  dc  ted^ 
tiosia,  1. 1.  &  S. 


'  denote  any  offence  of  the  first  kind ;  Which,  if 
it  do  not,  or  so  do  not,  ns  that  the  court  may 
by  the  words  of  it  be  sufficiently  inforaied  that 
it  is  some  olFeiice,  at  least,  of  the  fitst  kind  ; 
the  bail,  in  this  case,  ought  to  be  accepted. 
The  oSences  in  tbe  return  being  two;  first, 
*  notable   contempts,'  uid   then   ■  stirring  of 


bJI  Contempli,  of  what  kind  soever,  that  ar 
punishable  by  tbe  laws  of  the  realm,  ar 
' asBinst  thekingfandbisjovernmenti'immedi 
ately  or  mediately.  And  altbougb  the  latitude 
of  them  be  such,  as  that  tome  may  vaally  ex< 
ceed  others;  yet  they  are  all,  as  Contempts, 
only  tMSpasses,  &c.  puiusbable'ouly  by  fine  or 
imprisonment,  or  by  both,  but  not  until  con- 
viction of  the  parties  (as  neither  are  other  like 
offences),  unless  tbe  contempt  be  in  the  face 
of  some  coort,  agaiuit  wbicD  it  is  committed, 
wbich  supplies  a  coavictioTi.  Now  in  this  case, 
the  contempts  ore  only  expressed  in  a  g^ns- 
(ality,  nnii  no  conviction  appeurs  or  them.  So 
that  lor  that  part  of  the  return,  there  can  be 
no  col|>ur  why  the  bail  aught  not  to  be  accept- 
ed. But  nil  the  doubt  of  the  case  depends 
upon  the  second  oHence;  that  is,  <  the  stirring 
'  up  ofSeditioii  against  tbe  kbg.'  Which  if  it 
be  an  offence  only  of  (he  same  bisd  as  Con- 
lempts  are,  or  a  mere  trespass  only  to  the  king ; 
Of,  if  bv  ih«  words  of  the  return,  it  nppears  oot 
to  the  court  to  hp  an  offence  of  the  dnt  kind,. 
that  is,  either  treason,  or  felony  at  leuit,  (there 
being  no  conviction  in  the  case)  the  prisoner 
ought  to  be  hailed.  For,  unless  the  court  be 
«!sureil,  out  of  the  words  of  the  Return,  that 
the  prisoner  stands  committed  for  aume  such 
.  cause,  for  which  be  might  not,  of  right,  den 
his  bail ;  it  is  clear  they  ought  to  bail  him.  It 
rests  therefore  to  examine  tbe  nature  of  tba 
o.Tence  comprehended  in  those  words  '  stirring 
'  op  sedition  against  us.'  If  it  be  any  thiog 
above  what  is  trespass  only,  plainly  it  ma  '  ' 
either  treason  or  feloiiy.     For  felony,  no 

Siretends  that  by  tiiose  words,  any  kind  of 
elony  is  Co  be  undcrslooil.  The  question  then 
roust  be,  whether  the  .' Stirling  up  sedition 
'  against  the  king,'  be  treason  or  no ;  that  is 
high-treason,  as  all  treason  is  that  touchelfa  tLe 
kiiig,  as  treason?  For  petit-treason,  by  the  com- 
')  felony,  in  regard  of  the  king,  and 


offeodar ;  and  ihcrefore  the  indictments  of 
say  '  felonicfe  et  proditorife.' 

In   the  consideration  of  the  queuion  tin 
slAtetl,  first,  tbe  use. of  the  word  Sedi 


irlnn 


that  received  it  out  ef  that  lunguage,  is  to  be 
examined ;  and  then  what  those  words  '  imniiist 
<  us,'  import.  Out  of  both  which,  it  will  be 
easily  concluded,  that  the  offence,  as  it  is  ex- 
pressed in  the  return,  although  it  be  a  great 
one,  yet  It  ii  only  n  trespass,  and  puoiskable 
by  fine  only  or  imprisonment,  or  both  of  them. 
For  Seditign,  and  the  gentrsl  notion  of  it,  we 
hive  not  either  iu  the  division  or  explication 


„Go.nIc 


ttS]    STATE  TRIALS,  3  Crau-U  I.  IC29.— and  othanj^  on  im  Uabeai  Corpus.     [370 


'And,  u